FERNANDO v PHILIPS, 2026 ABCA 238

The Applicant sought $5,000 in enhanced costs after the Respondent appealed a Consent Order requiring the sale of the parties’ matrimonial home. The Appeal was later struck and deemed abandoned.

Ho J.A. denied the Application, finding that the evidence did not establish bad faith and did not support the Applicant’s claimed legal fees.

The Applicant argued that the Respondent knew the Appeal was unmeritorious and filed it in bad faith. The Respondent explained that he had consented to the Order in error and appealed because his elderly mother was living in the home. He abandoned the Appeal after his mother passed away.

The Court rejected the allegation of bad faith and confirmed that a meritless Appeal, on its own, does not warrant enhanced costs. Ho J.A. also noted that the Appeal was struck at an early stage before an Appeal Record or Factum had been filed, and the Respondent had advised opposing counsel months earlier that he would not pursue the Appeal.

Costs were awarded in accordance with Hansen v Hansen, 2023 ABCA 335 (“Hansen”). The Court confirmed that, under Rules 14.88 and 14.90, costs are to be awarded on the same scale as the Order under Appeal. Enhanced costs are reserved for litigation misconduct. Because the Respondent had not taken significant steps in the Appeal and no misconduct was established, Ho J.A. followed Hansen and awarded costs equal to one-half of Item 19(2) under Column 1 of Schedule C, plus reasonable disbursements and GST.