FRIESEN v FRIESEN, 2020 ABQB 305
9.14: Further or other order after judgment or order entered
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
This was a Decision regarding Costs relating to a previous Judgment that was issued following a Trial regarding divorce, support and matrimonial property issues. The Plaintiff claimed substantial success and sough Costs based on Column 1 or Column 4 of Schedule C depending on how the Court calculated success. The Plaintiff also submitted that the Defendant was only entitled to pre-Judgment interest on the Defendant’s portion of the value of the home as of the separation date. The Defendant claimed that she was more successful than the Plaintiff and sought Costs based on Column 4 of Schedule C. She also submitted that she was entitled to pre-Judgment interest on the value of her share of the home from the date of Action to the date of the Judgment. The Defendant also sought post-Judgment interest as the Plaintiff had not paid the amounts he was ordered to pay within the 60 day requirement.
Justice Loparco explained that Rule 10.29 provides that a successful party is entitled to a Costs Award and that Rule 10.33 provides a list of factors that the Court may consider when making such an Award. Justice Loparco noted that the relevant case law also provides that success in family law matters does not mean total success; rather, it generally means substantial success. Her Ladyship found that the Defendant, although not successful only every issue, was substantially successful at Trial. Justice Loparco awarded the Defendant Costs according to Column 4 of Schedule C subject to deductions for the hiring of experts.
Her Ladyship noted that the issue of pre-Judgment interest was a live issue at Trial, and that though she awarded the Defendant interest, she left it up to the parties to decide how to calculate the interest. The issue was referred back to Justice Loparco who explained that pursuant to Rule 9.14 the Court may, on Application after a Judgment or Order has been made, make a further Order if it is needed so as to provide a remedy to a party who is entitled to such a remedy from the original Order, and doing so does not require that the original Judgment or Order be varied. Her Ladyship then calculated the amount of interest that the Defendant was due for her share of the value of the home. Additionally, Justice Loparco ordered that the Plaintiff pay post-Judgment interest to the Defendant based on the amounts that remained outstanding.View CanLII Details