SG v JPB, 2014 ABQB 418


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

In a prior Application, the Plaintiff appealed a private guardianship Order granted to the family who fostered the Plaintiff’s child and sought private guardianship of the child herself. Justice Jones affirmed the Provincial Court Decision and directed the parties to make written submissions with respect to Costs.

Justice Jones first noted that, generally, the unsuccessful party should not expect to receive an award of Costs against the successful party. Rule 10.29 provides that a successful party to an Application is entitled to a Costs award against the unsuccessful party, subject to the principle that the Court has wide discretion to award Costs under Rule 10.31. Rule 10.31 confers general discretion to award Costs, taking into account the factors specified in Rule 10.33. Rule 10.33(1) provides an enumerated list of factors that the Court may take into consideration in making a Costs award. Further, Rule 10.33(2) provides that the Court may consider, inter alia, conduct of the parties which unnecessarily lengthened or delayed the Action, noncompliance with the Rules or an Order, and whether a party has engaged in misconduct.

The Plaintiff took the position that, despite being unsuccessful in the Appeal, Costs should be assessed against the Director of Child and Family Services and the foster parents. The Director challenged the Plaintiff’s position, noting that there was no authority to support a finding of special or unusual circumstances which would justify Costs against the Director. The Director did not advance a claim for Costs against the Plaintiff.

The foster parents took the position that the expected outcome would be for the Court to award Costs in favour of a successful party; they disputed the Plaintiff’s assertions of misconduct. The foster parents sought Costs for their guardianship Application and for the Appeal.

Counsel for the child submitted that the Court of Queen’s Bench retains the authority to make a Costs award pursuant to both section 93 of the Family Law Act section 2(1) of the Court Rules and Forms Regulation. In addition, Rule 10.33(1)(a) supports the position that the foster parents should receive their Costs because they were entirely successful on Appeal. In addition, the foster parents’ decision not to make oral submissions on the Appeal operated to shorten the proceedings which engaged the provisions of Rule 10.33(1)(f). Further, 10.33(2)(d) was engaged against the Plaintiff because of unnecessary or improper Applications. As such, Counsel for the child asserted that the child’s best interests were served by a Costs award in favour of the foster parents.

Justice Jones accepted the arguments of the Director, the foster parents and Counsel for the child. His Lordship held that it was appropriate to award Costs in favour of the foster parents based on their success in the matter. No Costs were assessed in favour of or against the Director.

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