Family law litigation can be a stressful process for anyone to go through. The emotional toll that dealing with issues such as decision making and parenting time (formally referred to as “custody and access”) can be compounded when those involved face the large fees associated with litigation. In a recent decision from the Court of Queen’s Bench of Alberta, the court looked at whether or not to award the mother a substantial cost award as a result of the father’s conduct leading up to and during litigation.
The trial leading to the costs decision lasted a total of 19 days, with many post-trial applications to follow. The mother and father have five children together. At the time of the separation in 2012, they were 10, 9, 7, 6, and 1.
The matters before the court began following an incident in 2012 when the mother was hospitalized following a drug overdose. The father said the mother had tried to take her own life, while the mother told the court the father had put drugs into her coffee in an attempt to cause her to overdose.
Following the overdose, the father went to court and obtained an ex parte order giving him custody of the five children and getting a restraining order against the mother.
This began what was described as an uphill battle for the mother to obtain any time with the children until a trial decision was issued. This was due to the ex parte order obtained by the father, as well as the mother’s lack of access to resources.
The father had asked the court to award him full custody, while the mother asked for the same. Ultimately, the mother was granted primary parenting of all five children, with the father having parenting time on alternate weekends as well as a weeknight on alternate weeks. While both parents were to contribute to decision-making, the mother ultimately had decision-making authority in the event of an inability to come to an agreement.
Mother seeks costs
The decision at hand had to do with determining costs for the trial. The mother asked for her own client costs as well as solicitor costs amounting to $400,000 as well as costs related to other aspects of the trial. The father said each party should be responsible for their own costs since neither was wholly successful.
Generally, party-party costs are awarded to a successful party in litigation. There are many factors that can be taken into consideration, and generally, a successful party can be expect to receive a portion of the costs they incurred.
Solicitor-client costs are more severe, and award a successful party much more in costs, particularly in the fees they paid their lawyer. The test for determining if solicitor-client costs should be awarded was set out in a 1993 decision by the Alberta Court of Queen’s Bench. Examples for what constitute a solicitor-client cost aware are:
- circumstances constituting blameworthiness in the conduct of the litigation by that party (Reese);
- cases in which justice can only be done by a complete indemnification for costs (Foulis v. Robinson);
- where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issue of fact or law which required these lengthy, expensive proceedings, where the positively misconducting party was “contemptuous” of the aggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his (Sonnenberg);
- an attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice, a requirement imposed on the plaintiff to prove facts that should have been admitted, thus prolonging the trial, unnecessary adjournments, concealing material documents from the plaintiffs and failing to produce material documents in a timely fashion (Olson);
- where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendants should be penalized beyond the ordinary order of costs (Dusik v. Newton);
- defendants found to be acting fraudulently and in breach of trust (Davis v. Davis);
- the defendants’ fraudulent conduct in inducing a breach of contract and in presenting a deceptive statement of accounts to the court at trial (Kepic v. Tecumseh Road Builder et al.);
- fraudulent conduct (Sturrock);
- an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges (Pharand).
In this case, the court rejected the father’s statement that the parties were each partially successful at trial. The court found the mother to have been awarded primary parenting time and decision making, while the father was not.
The court also examined the father’s “scorched earth” approach to litigation while tore the family apart. The parties’ two oldest children will not talk to or see the father, while the middle child refuses to see the mother. The court said, “The expert reports make it clear that the father did everything in his power throughout the litigation to tear down the mother in front of the children and to the courts and build himself up.” The trial judge also found the father to be “controlling, self-centred, and manipulative.”
Because of these, the court awarded the mother costs in legal fees amounting to $400,000 as well as other associated costs, bringing the total to $424,000.
At HMC Lawyers, our approach focuses on finding positive solutions through negotiation and mediation on behalf of our clients. Our family lawyers endeavour to resolve disputes in an efficient and timely manner, thereby minimizing stress to our clients. If court is required, we have the support of a respected litigation firm.