Feb 20, 2015

Summary of Byron v Byron

Byron v Byron, 2014 ABQB 240 (CanLII)

The Applicant sought an Order declaring a previous Order, which had been made without notice, and granted by the Honourable Justice Mr. Wong of the Supreme Court of British Columbia (the “Wong Order”), unenforceable.The Applicant also sought an Order for the abridgment of time for service and Costs of the Application. The Application was dismissed, and the Applicant sought a stay of enforcement of Justice Jones’ Decision until it could be appealed. The Decision to deny the Applicant’s request for a stay pending an Appeal (the “Jones Decision”) was to permit the Wong Order to be given effect, which meant the parties’ two children would be returned to the care of the Respondent on Vancouver Island. The Court of Appeal ultimately dismissed the Applicant’s request for a stay of the Jones Decision. The Wong Order was implemented and the parties’ two children returned to the care of the Respondent.

In considering a Costs award, Jones J. noted Rules 10.29, 10.29(a), 10.31, 10.33, and 10.33(1). The Respondent was successful and sought full indemnity of solicitor and own client Costs. She provided a draft Bill of Costs which reflected time charges of $14,805.36, disbursements of $195.80, and “other charges” of $2,047.57, which included travel costs. The Respondent sought full indemnity alleging that the Applicant: wrongfully and without prior notice refused to return the children; should have known he would fail in his attempt to have the Wong Order declared unenforceable; and as guilty of blameworthy conduct including unnecessary delay of resolution of the issues and improper allegations that the children’s needs were not being met and their safety was at risk. The Applicant believed that no Costs should be awarded, but if awarded, they should be limited to $500 with reference to item 7(1) of Schedule C of the Rules.

Jones J. awarded Costs to the Applicant in the amount of $13,055.85. Justice Jones reasoned that he was not prepared to go so far as to find that the Applicant was guilty of positive misconduct and was therefore not prepared to order Costs on a full indemnity basis, but found the circumstances appropriate to depart from Column 1. The matter was complex, involved jurisdictional issues and the interaction of legislation together with lengthy argument and discussion of the tests to be applied. The Applicant acted inappropriately in retaining custody of the children beyond their expected return date, in contravention of the understanding historically existing between the parties. Further, the Applicant’s actions required the Respondent to incur legal and other expenses, on short notice, and necessitated the participation of the Respondent’s British Columbia lawyer on very short notice and who was invaluable to laying the groundwork for an informed decision in the best interests of the children.