Watson v. Watson, 2013 BCSC 1100

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Watson v. Watson, 2013 BCSC 1100 Date: 20130624 Docket: 11-2120 Registry: Victoria Between: Robert Craig Watson Claimant And: Stanislava Watson Respondent Before: The Honourable Mr. Justice Johnston Reasons for Judgment Counsel for the Claimant: A.J. Duncan Counsel for the Respondent: R.C. Doell Place and Date of Respondent’s Submissions: Victoria, B.C. April 9, 2013 Place and Date of Claimant’s Submissions: Victoria, B.C. May 13, 2013 Place and Date of Judgment: Victoria, B.C.

June 24, 2013 [ 1 ] The respondent seeks the costs of this family law action, which came on for trial February 14 to 17, 2012, and March 5, 2012. The reasons for judgment are indexed at 2012 BCSC 730 .

The Order was entered November 14, 2012. [ 2 ] The respondent argues that she was substantially successful at trial, and that the result she achieved exceeded a modified offer to settle she delivered on February 14, 2012, the first day of trial. [ 3 ] The claimant says that success was divided, so no costs should be payable by either party, or in the alternative, if the respondent was substantially successful, she should not have her costs because that would undermine the balance achieved by the trial judgment, it would cause him financial hardship, it would not take account of costs and additional concessions he made after trial, and because the respondent has not complied with some aspects of the trial order since it was granted. [ 4 ] The parties reached agreement on a number of matters before the trial started, as reflected in paragraphs 41 through 44, and 81 (joint custody) of the reasons for judgment. [ 5 ] I consider the approach of the late Bouck J. in Fotheringham v.

Fotheringham, 2001 BCSC 1321 , to have continuing value in this sort of application.

There, Bouck J. concluded that the “event” that, when won, triggers an award of costs should be the main issue or outcome of the action, and that the meaning to be given to the Rules’ requirement that costs follow the event should be that all the costs of the action should be awarded to the party who achieved “substantial success” in the litigation. [ 6 ] The current Family Rule 16-1(7) mandates that “costs of a family law case must be awarded to the successful party unless the court otherwise orders.” [ 7 ] I have seen nothing that has persuaded me that the “successful party” should be anything less than a substantially successful party in order to attract an order for costs. [ 8 ] In their negotiations before, perhaps during, and after trial, the parties dealt with spousal support as a lump sum.

I assume this was because both recognized that Ms. Watson would need a lump sum to set off against Mr. Watson’s share of the equity in the family home if she had any hope of buying him out of his interest. At trial, each presented calculations based on the SSAG, and I found neither party’s approach to be helpful, as each had made assumptions that were not borne out by the evidence. [ 9 ] Ms. Watson succeeded in her claim for spousal support but I do not consider her success to have been “substantial”. [ 10 ] Ms.

Watson argues that continued settlement negotiations after the order was entered resulted in a lump sum for spousal support

in exchange for the monthly amount awarded at trial. I do not consider that an award of costs of an action that proceeds to trial should be affected by how the parties negotiate a resolution after trial in which they use the trial award as a basis for further discussion. In Rockwell v. Rockwell, Vancouver Registry No.

D105229, August 17, 1999, Shaw J. said at para. 8: In my view, the trial costs should be assessed based upon the circumstances prevailing at the time of trial, not those prevailing a year later. [ 11 ] These comments apply with equal force to changes brought about by negotiations or agreements by which parties refine the order of the court to reflect their priorities. [ 12 ] I am mindful as well that in Fotheringham , Bouck J., after canvassing the authorities, cautioned that an issue by issue dissection of the trial results in order to ascertain which party achieved greater success in each contest was neither necessary nor sensible from a policy point of view. [ 13 ] Having reviewed the Reasons for Judgment, I can say that Ms.

Watson achieved minor success on a number of issues that do not seem to me now to have been that important, and Mr. Watson achieved minor success on fewer of those less important issues. [ 14 ] On an issue where the parties placed more emphasis, division of the family home, neither party achieved success in that neither obtained the reapportionment each sought. [ 15 ] Mr. Watson concedes that Ms. Watson succeeded, and substantially, on the issues concerning division of his employment pension and the parties’ RSPs. [ 16 ] Using Bouck J.’s 75% rule of thumb from Fotheringham , I would not say that Ms.

Watson’s successes, in the aggregate, reached that or any other point that would persuade me that her success at trial was “substantial”. [ 17 ] As well, I note that the parties have used whatever balance was achieved by the trial result as a basis on which to negotiate further, and to adjust the trial result to better reflect their needs. Although that apparently was done without including the costs of the action, I would be reluctant to upset the balance achieved by the parties in their post-judgment agreements. [ 18 ] I therefore order that each party bear their own costs. [ 19 ] If I am wrong in that, and Ms.

Watson were awarded costs of the trial, I would not have ordered the double costs she sought on the basis of an offer to settle delivered on the first day of trial. [ 20 ] I say that for two reasons: first, an offer to settle delivered at the start of trial does not leave the recipient adequate time to reflect on the offer, consider its merits, and evaluate the risk of rejecting it.

Trials are stressful events, and it would be unfair to add to the stresses inevitably felt on starting a family trial the stress of considering a late offer and the risk of double costs. [ 21 ] Second, the offer itself purported to build on agreements said to have been reached in settlement discussions the day before trial, without identifying in the offer itself what agreements were said to have been reached. [ 22 ] Whether or not the parties knew on the first day of trial, or in the days immediately following, just what had been agreed to before the trial started, it is not possible for the court to know even now what had been agreed to before the trial started, as opposed to what was either agreed to or conceded during the trial. [ 23 ] The offer lacked the clarity and particularity necessary to form the basis of an order for double costs, in addition to being late. “R.T.C.

Johnston, J.” The Honourable Mr. Justice Johnston