The recent decision of Jivraj v Jivraj (2014 ABQB 307) by Madam Justice J.B. Veit dealt with whether accelerated costs, or costs above the tariff amount set out in Schedule C of the Alberta Rules of Court, should be granted to the Respondent husband in defending a second unsuccessful application by the wife for access to the matrimonial home. However, Justice Veit took the opportunity to comment more broadly on access to justice and the need to keep unmeritorious claims out of the Courts.
The wife in this case was told by the judge in her previous application that she should not make any further applications for access to the matrimonial home without notice to the husband. The wife then brought another such application without notice. The wife was unsuccessful on both applications and the husband was entitled to a minimum of $500 for each appearance based on the Alberta Rules of Court.
In considering whether to order double, solicitor-client or accelerated costs, Justice Veit took the opportunity to review the recent Supreme Court of Canada decision in Combined Air Mechanical Services Inc. v Flesch 2014 SCC 7. In that case, the Court stated that access to justice is the “greatest challenge to the rule of law in Canada today,” and called for a culture shift “in order to create an environment promoting timely and affordable access to the civil justice system” (paras. 1-2).
While that decision related to the commercial context, Justice Veit in Jivraj stated that these principles are “all the more pertinent in family disputes, where the cost of legal proceedings cannot be written off or passed along as a cost of doing business.” In a family matter, costs related to legal proceedings “come out of the budget of the parents and out of the availability of funding for the wellbeing of children” (para. 16).
Justice Veit further stated that the Courts and the bar must discourage parties from wasting time and money on Court proceedings that do not aid in achieving the principles of proportionality, timeliness and affordability. She stressed that this culture shift should also extend to the community at large, who must recognize that the Courts are supposed to be a last resort in solving minor disputes.
In this case, there was no merit to the wife’s application. Justice Veit awarded the husband $500 for defending the first application (the regular tariff amount) and $700 for the second application (“slightly accelerated costs”). According to Rule 10.29(1), the successful party to an application is entitled to Costs. The amount of these Costs are usually granted in accordance with the Alberta Rules of Court Schedule C: Tariff of Recoverable Fees, which sets out an amount for each step in a proceeding that the successful party can recover from the unsuccessful party. In this case, Justice Veit ordered costs above the tariff amount on the second application“[i]n order to recognize that the futility of this application should have been apparent to the applicant” (para. 17).
In his review of the decision, Philip Epstein states that “[t]his case is intended as a reminder to [the wife’s] firm and to all others that in family law litigation, in particular, the lawyer must act as a form of gatekeeper. He must not allow clients to engage in proceedings that have little or no merit, and that courts are not a matter of first resort but rather last resort” (Philip Epstein, “Epstein’s This Week in Family Law, July 28 2014,” Fam. L. Nws. 2014-30).