10.33: Court considerations in making costs award

Case Summary

This was an Application for Costs following the Respondent's non-appearance and the Applicant's partial success at an oral Emergency Protection Order (“EPO”) hearing. At the EPO hearing, the Applicant sought to confirm a previously ordered EPO and add a child to the EPO. The Respondent’s absence was not explained but was found not to be frivolous or otherwise an abuse of the Court's process. Though the Applicant was successful in confirming the EPO, she was not successful in adding the child to the EPO. Later, the Applicant sought Costs pursuant to Schedule C for various steps taken. The Court dismissed the Application for Costs.

In denying the Application for Costs, the Court considered case law indicating that the award of Costs is generally inappropriate in the context of Applications to seek or confirm EPOs. The Court explained that this limitation may be seen, generally, as being of benefit to prospective Applicants. An Applicant should not need to worry about the potential for an adverse Costs Award in seeking an EPO. As a corollary, the Court held that equity demanded that Costs Awards not be granted against unsuccessful, or partially unsuccessful, Respondents. Among other authorities, the Court cited its earlier Decision in Denis v Palmer, 2016 ABQB 54, wherein it was held, pursuant to Rule 10.33, that Decisions as to Costs Awards must take into account the importance of the issues in light of applicable legislation. Here, the pressing objectives of the Protection Against Family Violence Act, RSA 2000, c P-27 indicated that it would be inappropriate to limit vulnerable Applicants’ access to EPOs on the basis of concerns relating to adverse Costs Awards, and similarly inappropriate to impose Costs on an unsuccessful Respondent.

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