Geary v. Geary, 2017 BCSC 1750

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Geary v. Geary, 2017 BCSC 1750 Date: 20170929 Docket: 14-0525 Registry: Victoria Between: Debbie Lynne Geary Claimant And: Reathel Earl Geary III Respondent Before: The Honourable Mr. Justice Punnett Reasons for Judgment on Costs Counsel for the Claimant: N.J.W. Reid Respondent on his own behalf Written Submissions of Claimant: Written Submissions of Respondent: Reply Submissions of Claimant: July 14, 2017 August 4, 2017 August 22, 2017 Place and Date of Judgment: Victoria, B.C.

September 29, 2017 Introduction [ 1 ] Reasons for judgment in in this family matter are dated June 23, 2017 and are indexed at 2017 BCSC 1063 . The parties were given liberty to make written submissions on costs, which they have now done. These reasons address that issue. [ 2 ] The claimant seeks her costs given her success on parenting and financial issues. The respondent opposes an order for costs on the basis of his financial circumstances, that he had made an offer to settle similar to the judgment and that he disputes that the claimant was substantially successful.

Background [ 3 ] The detailed background is found in the reasons for judgment. The matter related to an appeal by the respondent of an arbitration award and the application of the claimant to vary that award. The arbitration award equalized family property and provided for equal parenting time with a set-off for child support of $2,104.00 per month payable by the claimant. The award also required that the claimant pay lump-sum spousal support of $232,600.00 to cover a future period of 8.25 years, plus $110,985.00 in retroactive spousal support.

However, the respondent upon receiving the spousal support payments immediately abandoned the equal parenting arrangement and returned to Oregon to reside with his new partner. [ 4 ] I found at trial that the respondent’s failure to disclose his intended relocation to the United States undermined the arbitration process and was a material change that favoured variation of the arbitration award. The respondent’s appeal was dismissed. [ 5 ] The result was that income was imputed to the respondent in the sum of $30,000 and a finding made that the claimant earned $113,000 in 2016.

Child support of $619.00 payable by the respondent to the claimant plus the respondent’s proportional share of s. 7 expenses was ordered. With respect to spousal support, the respondent was found to have no entitlement to compensatory support as the respondent’s career path has not been interrupted by the marriage and as he did not suffer any economic disadvantage from the marriage or its breakdown. Since the award was based on the premise of shared parenting which did not occur, lump sum support was varied from $232,600 to $61,431 on a needs basis with a set-off for overpayment against future obligations.

The claimant was awarded primary residence of the children and parenting responsibilities with specified parenting time for the respondent. [ 6 ] The “offer” referred to by the respondent was made pursuant to Rule 11-1. It was restricted to “parenting rights, responsibility and visitation”. It made no reference to financial matters except the issue of responsibility for the children’s travel insurance and life insurance to be maintained by the parties.

Law [7] Costs in a family law action are set out in the Supreme Court Family Rules, B.C. Reg. 169/2009. Rule 16-1 addresses costs andRule 11-1 governs the costs implications of offers to settle. [8] Pursuant to Rule 16-1(7) costs must be awarded to the successful party unless the court otherwise orders. Success is equated tosubstantial success, which as a general rule of thumb is achieved when a party succeeds on 75% of the matters in dispute, consideredglobally (Paul v. Pumple, 2013 BCSC 1844 at para. 14, citing Gold v. Gold (1993), (BC CA), 82 B.C.L.R (2d) 180(C.A.); MacLean v.

Mio, 2011 BCSC 148 and Fotheringham v. Fotheringham, 2001 BCSC 1321). [9] In Paul Mr. Justice Goepel said this at para. 15: [15] In Fotheringham, Bouck J. suggested at para. 46 a four-step inquiry to determine substantial success in cases involving multipleindividual issues: 1. First, by focusing on the "matters in dispute" at the trial. These may or may not include "issues" explicitly mentioned in thepleadings. 2. Second, by assessing the weight or importance of those "matters" to the parties. 3.

Third, by doing a global determination with respect to all the matters in dispute and determining which party "substantiallysucceeded," overall and therefore won the event. 4. Fourth, where one party "substantially succeeded," a consideration of whether there are reasons to "otherwise order" that thewinning party be deprived of his or her costs and each side then bear their own costs. [10] Substantial success is to be determined without reference to any offer to settle (Paul at paras. 16-17).

In addition it is to beassessed globally, not with respect to individual issues (Paul at paras. 20-21). [11] It is clear that globally the claimant was substantially successful. She was successful with respect to the issues of spousalsupport and its repayment, child support and the imputing of income to the respondent. In addition she was successful on the contentiousissues related to parenting.

The appeal of the respondent had sought further financial compensation from the claimant and was asmentioned earlier dismissed. [12] With respect to the offer from the respondent, as noted above it was restricted to matters involving the children. It was not aglobal offer to settle the issues between the parties. It left for resolution significant financial matters relating to child and spousal supportand the variation of the Arbitration Award. The effect of the limited offer in my view is that the Court cannot conclude that the trialresult was no greater than the respondent’s offer to settle.

The offer simply did not engage the litigation globally. As a result Rule 11-1(5)(

d) is not triggered (M.S.G. v. S.K.R., 2015 BCSC 913 at para. 27). [13] The claimant seeks her costs assessed as if the case involved more than ordinary difficulty on the basis of the complexity of theissues. Section 1(1) of Appendix B of the Rules, provides: 1(1) If a court has made an order for costs, it may determine if the family law case involves less than ordinary difficulty, ordinarydifficulty or more than ordinary difficulty. [14] In Kopp v.

Kopp, 2012 BCCA 140, the Court of Appeal gave examples of instances where more than ordinary difficulty hasbeen found: [90] In other family law cases in which costs have been awarded on a scale reflecting more than ordinary difficulty, the evidence hasshown deceit (Ahenkora v. Ahenkora, [1999] B.C.J. No. 1770 (S.C.), appeal dismissed 2000 BCCA 85), disregard for court orders,procedure or process that lengthened the trial and made it more difficult (Xu v. Leung, 2001 BCCA 163); misleading the court by failingto provide full and proper disclosure (Friedl v.

Friedl, 2010 BCSC 139); or failure to provide information in a cooperative manner orother conduct which increased the difficulty of the case (Dhalla v. Dhalla, 2002 BCSC 984; McPhail v.

McPhail, 2001 BCCA 250).None of these factors is present here. [15] In my view neither the issues nor the conduct of the self-represented respondent elevated the matter to the level of “more thanordinary difficulty.” While the respondent undoubtedly was more difficult for counsel for the claimant to deal with than would havebeen the situation had the respondent been represented by counsel, that does not justify a higher scale of costs. As noted by MadamJustice Young in K.A.L. v.

K.J.L., 2017 BCSC 1238: [32] It is a reality today that many family law cases are coming to trial with one or two self-represented litigants who are not familiarwith the Rules of Court. Where one party is represented and the other is not, there is an additional load on counsel for the representedparty. Since self-representation is becoming the "new normal", the court must take care to not penalize the self-represented party merelyfor their lack of familiarity with the Rules.

That in itself is not sufficient grounds for granting a higher scale of costs. [16] As a result I decline to order that the claimant recover her costs at an increased level. [17] The respondent submits that his financial circumstances are such that costs should either not be awarded against him or shouldbe reduced. The claimant notes that the respondent, according to his October 20, 2016 Financial Statement, owns two properties withclear title in the United States that he has valued at $321,700.00. In addition he has two retirement accounts totalling $135,918.00.

WhileI appreciate the judgment may cause the respondent financial stress, I am not satisfied that his circumstances merit a denial or reductionof costs in favour of the claimant. As I noted in K.A.M.R. v. W.H.G., 2014 BCSC 783 at para. 19, “financial hardship must be significant

enough that it invokes the court's discretion, not because of sympathy, but because it is of such a magnitude that it would be significantly unfair when considered in the context of the successful party's right to recover costs." [ 18 ] The claimant shall have her costs of both her application to vary and the appeal as matters of ordinary difficulty. Those costs shall include all applications and hearings in this matter. “R.D. Punnett, J.” The Honourable Mr. Justice Punnett