Ruling refuses to make father pay mother solicitor-client costs or double costs
The Court of Appeal of Alberta declined to order a father to pay solicitor-client costs or double courts but did order him to pay $5,000 in enhanced costs after it dismissed his appeal of an interim child support order.
The parties in this case divorced in 2016. The divorce judgment imposed a shared 50/50 parenting scheme over their two children, born in 2007 and 2010. The father had to pay $166 per month in child support under s. 3 of the Federal Child Support Guidelines, SOR/97-175.
In February 2023, the mother applied for a variation of the parenting order and for retroactive and ongoing child support. After a chambers hearing in August 2023, the court refused to modify the parenting order and left the issue of child support open for determination at a special chambers hearing set for July 2024.
At an October 2023 hearing, the mother requested interim child support. She explained that she could not afford to wait until the July 2024 hearing for a determination on the issue of child support because the children were living with her full-time.
The chambers judge found that the current parenting arrangement did not reflect the original 50/50 split since both children were residing with the mother. The judge set the father’s income at $59,885 and the mother’s at $37,000.
On an interim basis, the judge ordered the father to pay monthly child support of $867, effective Oct. 1, 2023, and 60 percent of the s. 7 expenses, which included costs for the children’s hockey and dance activities. The judge also awarded the mother $2,000 in costs.
Last May 16, in Birch v Birch, 2024 ABCA 158, the Alberta Court of Appeal dismissed the appeal of the father. The appeal court held that the interim child support order should remain in place until the July 2024 special chambers hearing could fully address the issues. The appeal court found no abuse of process or procedural unfairness on the part of the chambers judge.
The mother sought solicitor-client costs of $8,000. She argued that the appeal lacked merit and a legal argument. She alleged that the upcoming special chambers hearing would have addressed the interim support order.
Alternatively, the mother sought $6,750 in double costs under Schedule C, Column 1 of the Alberta Rules of Court, Alta Reg 124/2010, based on a formal offer made to the father in February 2024.
On Aug. 30, in Birch v Birch, 2024 ABCA 284, the appeal court awarded the mother $5,000 in enhanced costs. This amount was around 1.5 times the usual Schedule C amount. The award included disbursements, fees, charges, and GST.
The appeal court concluded that the father should not have brought the appeal. The appeal court acknowledged that the father’s decision to appeal an interim order shortly before its scheduled review could be deemed an inefficient use of court resources and an abuse of the opposing party.
However, the appeal court rejected the mother’s request for full solicitor-client costs. The appeal court noted that it generally reserved such awards for cases involving a party’s reprehensible, scandalous, or outrageous conduct, which was not present in this case.
Lastly, the appeal court addressed the mother’s formal offer to settle, which would have required the father to withdraw his appeal and pay $1,000 in costs. While the offer reduced the usual Schedule C amount, the appeal court decided that it did not justify double costs.
