HKH v JDH, 2019 ABQB 163
10.33: Court considerations in making costs award
The Plaintiff sought enhanced Costs following a five day custody, parenting, and child support Trial. The separation and divorce was high conflict and the Defendant was self-represented. The child at the centre of the dispute had medical concerns which were the subject of dispute during the Trial. The Defendant refused to admit the child’s medical condition or treatment needs, instead demanding the attendance of medical witnesses at Trial. The Defendant also advanced the position of joint custody and shared parenting time despite that position not being found to be reasonable given evidence of domestic violence against the Plaintiff and one of the children, and further aggressive behaviour during supervised access visits. The Defendant also failed to make proper financial disclosure.
Justice Kubik noted that the presumptive position is that the successful party is entitled to their Costs. The issues in dispute in this Application related to whether the Plaintiff was entitled to enhanced Costs, and how the costs of counsel for the child ought to be paid.
Justice Kubik noted that Rule 10.33 requires the Court to consider the degree of success of the parties, importance of the issue, complexity of the Action, and party conduct which tended to shorten the Action. Regarding enhanced Costs, Kubik J. noted that the relevant considerations from Rule 10.33(2) included conduct which unnecessarily lengthened or delayed an Action, a party’s refusal to admit anything which should have been admitted, whether any proceeding or step was improper or not in compliance with the Rules, and whether a party has engaged in misconduct.
Justice Kubik noted that although the Defendant was self-represented, self-representation does not empower the litigant to unnecessarily use Court resources to advance unmeritorious positions. The Defendant’s failure to make proper admissions regarding the child’s medical needs unnecessarily lengthened the Trial, and was not reasonable. Further, the Defendant’s position seeking joint custody and equally shared parenting time was unsupported by the evidence or law. Lastly, the Defendant failed to comply with the rules regarding financial disclosure, further adding to the length of the Trial and complexity of the matter. Justice Kubik found that enhanced Costs were appropriate in the circumstances, awarding Costs on the next higher column of Schedule C.
Justice Kubik found that there was no reason to depart from the previously ordered cost split regarding counsel for the child. However, Justice Kubik did find that the costs incurred by counsel for the child as a result of taxation initiated and pursued by the Defendant were solely attributable to the Defendant’s conduct, for which the Defendant would be solely responsible.
The Plaintiff’s Application for enhanced Costs was granted.View CanLII Details