SS v AS, 2021 ABQB 294


4.24: Formal offers to settle
10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

This was a Costs Decision arising out of a high conflict parenting and child support case that was decided at Trial. The Court determined that the Defendant (the “Father”) was substantially more successful than the Plaintiff (the “Mother”) and was thus entitled to Costs. The Father sought enhanced Costs based on factors such as his pre-Trial written offers (the “Offers”) and the Mother’s litigation conduct (the “Conduct”).

The Court noted that, subject to the Court’s discretion, the successful party is entitled to Costs from the unsuccessful party. The Court also noted that the strong public policy reasons and decided legal authority compels the Court to not treat Costs differently in family law cases (Metz v Weisgerber, 2004 ABCA 151). The Court set out the considerations in Rule 10.33 to be considered when making a Costs Award.

The Court first considered the Offers. Mahoney J. noted that Rule 10.33(h) permits the Court to consider any offer for settlement in making a Costs Award, not just a Formal Offer under Rule 4.24. The Court determined that the Father made a settlement offer that was more favourable to the Mother than the Trial outcome. The Court awarded Schedule C Costs under Column 1 with a 25% Costs enhancement due to the Offers.

The Court then considered the Conduct. The Father pointed to the Mother’s many unsuccessful Applications, lack of cooperation and compliance in moving the matter along, serious unfounded allegations, and a last-minute acceptance of the Father’s spousal support and matrimonial property offer. Mahoney J. noted that the Court may award enhanced Costs for blameworthy litigation conduct where a party’s conduct demonstrates blatant disregard for the rights of other parties. The Court found that the Conduct did not rise to the level necessary to award enhanced Costs and declined to do so.

Given the above, the Court awarded Schedule C, Column 1 Costs enhanced by 25% for a total of $36,000. In addition, the Court awarded disbursements claimed by the Father with some adjustments and GST on applicable fees and disbursements.

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