MYW v DTW, 2023 ABKB 467


10.31: Court-ordered costs award
10.41: Assessment officer’s decision

Case Summary

Following the mother’s Application for, among other things, the partition and sale of the parties’ matrimonial home, Jones J. issued his Costs Decision. He awarded the mother Costs under Column 1 of Schedule C of the Rules, plus reasonable disbursements.

While the Chambers Order provided for the mother’s entitlement to Schedule C Costs, the parties were unable to agree on the quantum and proper column. The father argued that Costs of $675 under Column 1 were appropriate. The mother argued threefold: first, Costs should be calculated with recourse to Column 3 with a multiplier of two, for a total amount of $10,696.63; second, and in the alternative, a similar calculation should be undertaken under Column 2; and third, and in the final alternative, Column 2 Costs with no multiplier.

The mother acknowledged that Courts assess Costs under Rule 10.31, and that but for the Chambers Order limiting Costs to Schedule C, she would have argued for a Costs Award in the range of 40% to 50% of reasonable Costs incurred, as per the Court of Appeal decisions in Barkwell v McDonald, 2023 ABCA 87 (“Barkwell”) and McAllister v Calgary (City), 2021 ABCA 25 (“McAllister”).

However, the mother also presented Jones J. with the recent Court of King’s Bench Decision in Grimes v Governors of the University of Lethbridge, 2023 ABKB 432 (“Grimes”), where Graesser J. stated that a departure from Schedule C party-party Costs requires some exceptional circumstances. The mother disagreed with Graesser J. She argued that Grimes rests on an erroneous conclusion that the Costs provisions of the Rules treat Judges and Assessment Officers alike; when in reality, they differ, as Rule 10.41(1) limits awards by Assessment Officers to “reasonable and proper costs” while Rule 10.31(1)(b) lets Judges award any amount “appropriate in the circumstances”.

Jones J. recognized that the mother’s challenge to the reasoning in Grimes represents an invitation to revisit Barkwell and McAllister. However, he declined the invitation. He stated that any clarification of the principles from Barkwell and McAllister, and their application in Grimes, rests with the Court of Appeal.  

Jones J. awarded Costs in favour of the mother under Column 1. He relied on the McAllister decision for the proposition that “Schedule C can be particularly useful and efficient in high volume interlocutory matters such as chambers applications”. There was no evidence that the father’s conduct justified an award of enhanced Costs.

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