MMP v TWZ, 2023 ABKB 355


10.2: Payment for lawyer’s services and contents of lawyer’s account
10.33: Court considerations in making costs award
10.9: Reasonableness of retainer agreements and charges subject to review

Case Summary

This was a Costs Decision arising from an unsuccessful Application to relocate the Parties’ children to the United States. The Respondent sought Costs while the Applicant asked the Court to decline to award Costs due to her limited financial means. Both Parties received legal representation through Legal Aid Alberta.

The Court noted that the general legal principles for Costs Awards were applicable to family law matters, involving relocation Applications. The Court then referred to Rule 10.29(1), which sets out the general rule that a successful Party is entitled to Costs. The Court also set out Rule 10.33, which lists factors that may guide the Court’s discretion in making a Costs Award. In addition, the principles established in McAllister v Calgary (City), 2021 ABCA 25 were cited extensively as the legal framework under which entitlement to and the amount of a Costs award shall be assessed and determined.

In terms of entitlement, the Respondent claimed that he was entitled to Costs on the basis that he had been successful in resisting the relocation Application. The Applicant responded that each Party should bear their own Costs because: (1) her limited financial means should be taken into account; and (2) the Respondent had less need for indemnification as the lawyer’s charges were paid out by Legal Aid Alberta.

In dismissing the Applicant’s arguments, the Court noted that the unsuccessful Party’s current inability to pay was not a factor in gauging Costs entitlement, since their circumstances might change, enabling payment in time. The Court took judicial notice of the notorious fact that the Legal Aid program was a finite public resource with limited funding and held that the involvement of Legal Aid Alberta did not disentitle a Party from receiving Costs, even enhanced Costs.

In terms of the proper amount of Costs, the Respondent asserted that the Applicant’s unfounded allegations of family violence and filing of unhelpful third-party Affidavits should attract enhanced Costs. In this regard, Justice Feth noted that the Court should be cautious about enhancing Costs simply because a hearing was marginally longer or more complicated because of a small amount of extraneous evidence that was not wholly unnecessary.

Justice Feth recognized that the family violence allegation was too far removed from the Parties’ current situation but found that the Applicant did not unnecessarily raise the issue or engage in misconduct, since the issue was relevant to the best interests of the child analysis. The Affidavits, although replete with hearsay and opinions based on hearsay, did not needlessly expand the issues to which the Respondent must respond. Additionally, they contained evidence about the Respondent’s parenting and the child’s upbringing, which provided assistance to the Court. Similarly, the Applicant’s argument that the Respondent complicated the proceeding by filing several more pages of Affidavit evidence than originally allowed by the oral hearing Order was dismissed. The Court found that the additional pages of Affidavit did not materially lengthen or complicate the proceeding.

However, the Court highlighted the lengthy litigation history between the Parties, including more than 30 appearances in front of Judges since August 2017, many of which involved parenting disputes and minor matters. The Court emphasized that Costs Awards should not prevent access to justice but should always seek to promote responsible litigation and align with the primary purpose of a Costs Award - a reasonable level of indemnification to the successful Party. The Court noted that the litigation history suggested that a significant Costs Award would be appropriate in this case despite the Applicant’s modest means. The significant Costs Award amount would promote responsible litigation and ensure that both Parties would be encouraged to pursue settlement, compromise, and constructive communications, instead of Court proceedings.

In the result, the Court awarded a lump sum amount of $3,250 to the Respondent, which was less than full indemnity but higher than the general target range of 40-50% indemnification.

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