D.M.F. Claimant v. T.J.D. and S.C.M., 2022 BCSC 731

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.M.F. v. T.J.D. , 2022 BCSC 731 Date: 20220505 Docket: E193118 Registry: Vancouver Between: D.M.F. Claimant And T.J.D. and S.C.M. Respondents Before: The Honourable Madam Justice Lyster Reasons for Judgment on Costs Counsel for D.M.F.: K.D. Craig Counsel for T.J.D.: M. Magnusson Date of Hearing: January 7, 2022 Written submissions received: Vancouver, B.C. November 24, 2021, January 25, 2022, January 28, 2022 and February 11, 2022. Place and Date of Judgment: Vancouver, B.C.

May 5, 2022 Introduction [ 1 ] On June 25, 2021, I issued reasons for decision, indexed as D.M.F. v. T.J.D. , 2021 BCSC 1249 , following a three-day chambers hearing of three inter-related applications, all related to the interim parenting arrangements for the parties’ children. I described the applications before me as follows: [2] The first is Ms. F.’s appeal of the decision of Master Muir made October 2, 2020 with respect to various parenting issues: 2020 BCSC 1466 . I heard that appeal on November 26, 2020, and issued my decision on April 9, 2021: 2021 BCSC 648 .

In that decision, I held that it was necessary for the parties to be cross-examined on their affidavits in order to complete the appeal, and varied Master Muir’s order to provide the parties with equal parenting time until such time as that could occur. [3] The cross-examination was scheduled for May 5 and 6, 2021. In the immediate lead-up to that hearing, the parties filed two applications. Ms. F. filed a notice of application on April 12, 2021 (refiled on April 26, 2021) seeking a variety of orders, including the imposition of fines against Mr. D. for breaching earlier court orders. Also, on April 12, 2021, Mr.

D. filed a notice of application seeking to vary Master Muir’s order, and various other orders. After my decision was released to the parties, Mr. D. amended his notice of application on April 22, 2022 to request that I reconsider or vary my interim order. By order of Master Cameron, dated April 16, 2021, the parties’ two additional applications were scheduled to be heard together with the cross-examination on affidavits. [ 2 ] I summarized the orders made after hearing as follows, at para. 134: Parenting Arrangements 1.

The parties will have equal parenting time with M.D. and N.D. every other week starting at 5:00 p.m. on Friday. 2. During the weeks the children are with the other party, each party may have a telephone or video call with the children on Wednesday evenings between 5:00 p.m. and 8:00 p.m. for up to approximately 20 minutes in duration. 3. Ms. F. will have parenting time for one-half of the Christmas and spring break holidays, and during the summer holidays on a week

on/week off basis. 4. Each party may take M.D. and N.D. on a two-week summer vacation with 60 days’ notice to the other party. 5. The parties may vary these arrangements by consent, provided that the consent is evidenced in writing. The Children’s Sleeping Arrangements 6. The parties will provide the children private age-appropriate sleeping accommodation in each party’s home. 7. If each party’s respective home has a sufficient number of bedrooms, M.D. and N.D. will each have their own room.

If it does not have enough bedrooms, M.D. and N.D. may share a room with each other, but must not regularly share a room with anyone else. This order does not prevent sleepovers and other similar circumstances. Decision-making Authority 8. Each party will have the responsibility to make day-to-day decisions affecting the children while they are in their care. 9. Each party will advise the other party of any matters of a significant nature affecting the children. 10.

Each party will consult the other party about any important decisions that must be made and will try to reach agreement concerning these important issues. Failing agreement on such important decisions, either party may apply to court. 11. Should these orders prove unworkable in making decisions affecting the children, either party may apply to court to vary them. Communication 12. Mr. D. will obtain his own email address and provide that email address to Ms. F. within one week of the date of this decision. 13.

All communications between the parties, including with respect to varying parenting times, are to be done by email, using Ms. F. and Mr. D.’s email addresses. Text messages may be used only when it is necessary to communicate information relating to the children on an urgent basis.

Section 211 Report 14. A s. 211 report will be prepared by a qualified individual chosen jointly by counsel for each party. Failing agreement, either party is at liberty to apply to the court to appoint the report writer. 15. The parties will cooperate fully in the s. 211 report process. 16. Mr. D. will initially bear the cost of the s. 211 report. The ultimate responsibility for the report will be determined by the court unless otherwise agreed to by the parties. Counselling 17.

The parties will attend counselling with a counsellor who has specialized experience in working with family separation and co- parenting for the purpose of reducing the conflict and enabling future consultation and communication with respect to the children. 18. Counsel are to agree to such a counsellor. Failing agreement, either party is at liberty to apply to the court. 19. The initial counselling sessions will be held separately. Joint sessions, if any, will only be held at such time as the counsellor may consider them appropriate. 20. Mr. D. is to pay the initial cost of up to 12 counselling sessions.

The ultimate responsibility for the cost of counselling will be determined by the court unless otherwise agreed to by the parties. Conduct Order 21. Neither party will consume any controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , except as prescribed by a licensed physician, during parenting time and for 12 hours before having parenting time. Other Orders 22. Mr. D. will pay $2,500 to Ms. F. for the benefit of the children. 23.

All other terms of Master Muir’s order will remain in place. [ 3 ] I did not deal with costs in the decision, as there was insufficient time for the parties to make submissions. I directed that if they were unable to agree on costs, they could appear before me. [ 4 ] A hearing to address costs was ultimately scheduled for January 7, 2022. Counsel for Ms. F. appeared, but Mr. D did not attend in person or by counsel. I directed that the parties could file written submissions with respect to costs. Ms. F. had already filed submissions

on November 24, 2021. Mr. D. filed a response on January 25, 2022, and Ms. F. filed a reply on January 28, 2022. Mr. D. filed anunsolicited letter, in the nature of sur-reply, on February 11, 2022, objecting to certain aspects of Ms. F’s reply. [5] I have reviewed all submissions filed by the parties, but I have considered only those which are relevant to the current matterbefore the court, which is costs of the May 5-7, 2021 hearing. [6] In brief, Ms. F. seeks costs, or special costs, of the hearing. Mr.

D seeks to have costs of the hearing adjourned to the trial, whichis currently scheduled for 12 days beginning August 23, 2023. In the alternative, he seeks an order that each party bear their own costs. Analysis [7] Ms. F. relies on the principle that parties that are “substantially successful” are entitled to costs, as set out in Aschenbrenner v.Yahemech, 2010 BCSC 1541 (“Aschenbrenner”). [8] Mr. D. relies upon N.L. v. D.L., 2018 BCSC 2199 [N.L.]. In that case Mr. Justice Bowden considered costs in a matrimonial casefor both trial and pre-trial proceedings.

The most important issue in that case was child custody, and in particular, whether the childrenwould be permitted to move to New Zealand with the claimant. After referring to Rule 16-1(7) and (

d) of the Supreme Court FamilyRules, he referred to Gold v. Gold, (BCCA) [Gold] for the proposition that awards of costs in family law cases shouldbe the same as in other civil litigation, that is that costs follow the event unless the court otherwise orders. At para. 5, Bowden J. citedpara. 20 of Chief Justice McEachern’s decision in Gold, for the factors a court should consider in the exercise of its discretion to orderotherwise: 20. The question, then, is: when should the Court order otherwise?

With respect, when the court should order otherwise is a matter ofdiscretion, to be exercised judicially by the trial judge, as directed by the Rules of Court. To lay down any strict guidelines or even toattempt to give exhaustive examples is not, I think, helpful because the facts and issues in each family law case vary so greatly.

Factorssuch as hardship, earning capacity, the purpose of the particular award, the conduct of the parties in the litigation, and the importance ofnot upsetting the balance achieved by the award itself are all matters which a trial judge, quite properly, may be asked to take intoaccount. Assessing the importance of such factors within the context of a particular case, however, is a matter best left for determinationby the trial judge. [9] Justice Bowden then referred to S.J.C. v.

S.-J.C.A., 2010 BCCA 31, where Prowse J.A. stated, at para. 62, that “the usual rule that“costs follow the event” (that is, that the “successful” party is entitled to costs) applies in matrimonial proceedings, subject to a discretionto refuse costs to the successful party in certain circumstances”. [10] Justice Bowden held, at para. 12, that “in the exercise of its discretion, a trial court may conclude that it is not appropriate to awardcosts in a custody case involving mobility without departing from the approach of the Court of Appeal in Gold.” He went on to find thatif an order for costs was made against the respondent in that case, it would limit his ability to have contact with the children, whom thecourt had permitted to move to New Zealand.

Accordingly, each party was ordered to bear their own costs. [11] I agree with Ms. F. that N.L. can be distinguished from the present case. Unlike N.L., the present case does not concern mobility ofchildren. Nor is there any basis to believe that an award of costs against Mr. D. would limit his ability to have contact with the children. In that regard, I note that while Mr. D’s income is in issue between the parties, Master Muir imputed him with an income of $75,000.00. [12] The first question the court must consider is whether either party had substantial success in the May 5-7, 2021 hearing.

In myview, it is clear that Ms. F. had substantial success. In my earlier decision, I had ordered that the parties have equal parenting time,thereby substantially increasing Ms. F’s parenting time on an interim basis from that ordered by Master Muir. Before me, in the May 5-7, 2021 hearing, Mr. D. sought to roll that back to the children being primarily resident with him, with Ms. F. having limited parentingtime, to be supervised by her parents. While Ms. F. did continue to seek to have the children be primarily resident with her, she wasprepared to continue on the equal parenting

schedule I had ordered. This was by far the most important issue before me, and Ms. F. wassubstantially successful in respect of it, with the parties being ordered to continue to have equal unsupervised parenting time. [13] Ms. F. was also substantially successful with respect to the orders Mr. D. sought to have her undergo drug testing, be prohibitedfrom taking controlled substances and attend rehabilitation or counselling to address substance use. Similarly, she was successful withrespect to Mr.

D’s application to have sole decision-making with respect to important decisions about the children. [14] It is true that Mr. D. succeeded on some matters, in particular having a s. 211 report ordered and an order that the parties attendcounselling. But in my view, those matters were of substantially lesser importance than the matters in respect of which Ms. F.succeeded. [15] Given that Ms. F. was substantially successful, are there circumstances which suggest that the court should exercise its discretionto deny her her costs? In my view, there are not. As I have already mentioned, Mr.

D. has been imputed with an income of $75,000.00,so being required to pay costs will not cause him any particular hardship. [16] Further, while it is true that I stated, at para. 22, that I had some concerns with respect to the reliability of some aspects of Ms. F’sevidence, I also stated that those concerns “pale in comparison to my concerns about Mr. D.’s evidence”. As I outlined in detail in mydecision, at paras. 11-23, I found Mr. D. to be an unreliable and incredible witness, who lied under oath. His litigation conduct thereforesupports making a costs award against him. [17] Notwithstanding Mr.

D.’s litigation conduct, I am not persuaded that an award of special costs is appropriate for the May 5-7, 2021hearing. As in El Issa v. Batista, 2022 BCSC 643, some of the matters Ms. F. relies upon in support of her application for special costsgo beyond that hearing, and they are not appropriately considered in connection with this application. The standard for an order forspecial costs is high, requiring conduct that is outrageous, scandalous, or reprehensible, as discussed in Garcia v. Crestbrook Forest

Industries Ltd. No. 2, (BCCA) at para. 17. While Mr. D.’s conduct in providing unreliable and incredible evidence,and making what were found to be unsupported allegations of child abuse, has been improper, I am not persuaded that his conduct in thishearing, standing alone, is sufficient to meet the standard for special costs. In this regard, I have also taken into account the fact that Ialready ordered Mr. D. to pay Ms. F. $2,500.00 for the benefit of the children. Conclusion [18] In all of the circumstances of this case, I consider it appropriate to order Mr.

D. to pay costs of this hearing, in any event of thecause. I accept Ms. F.’s submission that the amount of costs should be fixed at $6,000.00, based on the tariff amount of $2,000.00 perday for a three-day chambers hearing. Given the parties’ comparative financial circumstances as found by Master Muir, and the fact thetrial of this family law case is not scheduled to occur until August 2023, costs are payable within 14 days of the date of this decision. “Lyster J.”