JS v JD, 2023 ABKB 288


4.29: Costs consequences of formal offer to settle
10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

This was a Decision on Costs following a mixed success family Trial. Both Parties claimed Costs on the basis that they were substantially successful at Trial, pursuant to Rule 10.29. The Plaintiff sought double Costs for steps taken following service of a Formal Offer, pursuant Rule 4.29.

The Court listed several principles applicable to the determination of Costs Awards, namely: the successful Party is presumptively entitled to Costs, which presumption applies equally to family matters; success in a family matter means substantial success, not absolute success; assessment of substantial success measures ultimate outcomes against relief initially sought; a finding of success may be based on a finding that a Party was successful on the most important issue litigated; enhanced Costs may be awarded where there has been misconduct in the litigation; Rule 4.29 provides for double Costs where a Plaintiff’s Formal Offer to settle is more generous than the ultimate outcome and the Plaintiff’s Formal Offer is not accepted by the Defendant; Costs Awards are discretionary, subject to principled exercise of the Court’s discretion; and Rule 10.33 provides a non-exhaustive list of factors, which help to guide the Court’s discretion.

Reviewing the Parties’ respective requests for relief and results at Trial, the Court held that neither Party had achieved substantial success. While the Plaintiff was successful in certain respects, the Defendant was successful in others, some of which were significant. Similarly, the Plaintiff’s Formal Offer was not more generous than the ultimate outcome, which provided for less parenting time, a less generous division of matrimonial property and a less generous spousal support award, accounting for payments made just prior to Trial. Finally, the Court held that the Plaintiff’s allegations of litigation misconduct, which included frequent changes of counsel, failure to accept the truth of certain documents, and other issues the Court had previously indicated it would not consider, were insufficient to justify an award of Costs.

In the result, each Party was responsible for their own Costs. Fees borne by the Plaintiff for an expert assessment in regard to parenting were ordered to be shared equally.

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