MDS v DSM, 2020 ABQB 749


10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

Justice Lema heard the Applicant’s claim for Costs following his successful Application for primary parenting and the return of a child to his custody. The Applicant argued that as the successful party, he was presumptively entitled to Costs, and that the Respondent’s conduct in unilaterally moving to Newfoundland with the child in contravention of a Court Order further supported a Costs Award. The Respondent’s position was that, due to her impecuniosity, Costs were not appropriate, or alternatively, that they should be deferred until after the impending Trial.

Justice Lema stated that Rule 10.33 sets out the considerations in making a Costs Award, and Rules 10.29 and 10.31 confer discretion upon a Justice in ordering Costs. Furthermore, His Lordship found that since Rule 10.33(1) directs the Court to assess the results of a proceeding when ordering Costs, a Costs Order should follow the event to which it pertains, and that it would be inappropriate to defer Costs until after Trial. Additionally, His Lordship noted that while there are some authorities that support granting enhanced Costs in custody and mobility cases such as this, Column 1 Schedule C Costs are the norm where there is no monetary component involved. 

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