SER v JS, 2020 ABQB 390


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

Case Summary

This was a Decision regarding Costs related to a family law matter. The Plaintiff mother, SER, had previously made an Application to impute a higher income to the Defendant father, JS, which was ultimately unsuccessful. A child support Order was granted on the basis of the reported line 150 income of JS.

The Court considered Rule 10.29 in making the Costs Award, which states the “successful party” is entitled to Costs. Each party argued they had been successful, and as a result should be entitled to Costs. JS argued that he had been successful in defeating SER’s Application to impute a higher income, whereas SER argued that she had successfully obtained a child support Order. Justice Jones summarized his findings with respect to the proceedings on the substantive matter and held that JS was the successful party and was therefore entitled to Costs.

The Court then considered Rule 10.33(2) which allows a Court to consider the conduct of a party with respect to delaying the Action, their willingness to make admissions, or the filing of multiple claims. The Court again referred to the Decision on the merits and found that SER had alleged fraud and conspiracy unnecessarily, but that a Costs Award should not be used as a penalty or fine. The Court found that the Application for child support was fundamentally reasonable.

The Court then reviewed the factors set out in Jackson v Trimac Industries Ltd., [1993] 138 AR 161 when determining if an increased Costs Award should be made. The Court held that SER had only engaged in making untrue and scandalous statements regarding the financial and business practices of JS, but that such statements did not attract solicitor-client Costs. Costs were ordered to be paid by SER to JS on the basis of Schedule C, Column 1. The Court also awarded Schedule C, Column 1 Costs with a multiplier applied to the third party individuals who were required to respond to the imputed income Application.

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