Walsh-Anstey v. Anstey, 2015 BCSC 1057

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Walsh-Anstey v. Anstey, 2015 BCSC 1057 Date: 20150619 Docket: 10-3595 Registry: Victoria Between: Michelle Denise Walsh-Anstey Claimant And: Gregory David Anstey, also known as Gregory David and 611287 B.C. Limited Respondent Before: Master Bouck (As Registrar) Corrected Judgment: The judgment was corrected on June 26, 2015, at paragraphs 8, 10, 11 and 14. Reasons for Decision Counsel for the Claimant: D.R. McLeod Counsel for the Respondent Gregory David Anstey (Applicant): T.L. Rodgers Place and Date of Hearing: Victoria, B.C.

June 9, 2015 Place and Date of Decision: Victoria, B.C. June 19, 2015 Place and Date of Corrigendum: Victoria, B.C. June 26, 2015 Introduction [ 1 ] This is an assessment of costs in a family law proceeding. The bill presented by the respondent is relatively simple and relates to the claimant’s application to vary a final order. That final order was made by consent and dealt with all of the issues raised in the pleadings, including costs. The parties agreed to bear their own costs. [ 2 ] The consent order was made on January 17, 2012.

Some six months later, the claimant brought an application to vary certain terms of the order. Humphries J. dismissed the application and awarded the respondent his costs: 2012 BCSC 926 . [ 3 ] At issue between the parties are the respondent’s claim for Tariff Items 1, 2 and 4, and two disbursements. The total amount of costs claimed is $4,630.20 inclusive of taxes. The Tariff Items Item 1 - Correspondence, conferences, instructions, investigations or negotiations [ 4 ] It is accepted that correspondence, conferences and investigations were undertaken following the final order being granted on January 17, 2012.

However, the order of Humphries J. relates only to costs of the variation application. As stated by the court in Way v. Way , 2013 BCSC 871 , a party awarded costs of a particular contested application is not entitled to Item 1 as that item applies to correspondence, instructions and pleadings for the family law case generally: para. 41. The parties agreed to bear their own costs for the proceeding. [ 5 ] Item 1 is disallowed.

Item 2 - Process for discovery and inspection of documents [ 6 ] The same principle applies to this item; the tariff item is intended to compensate a party for the document discovery process carried out during the proceeding. Item 2 is also disallowed.

Item 4 - Two half-day attendances at contested application [ 7 ] The variation application was heard partly in the morning but continued into the afternoon of a chambers day. According to the court

summary sheet, the hearing altogether lasted two hours and twenty-six minutes, with judgment reserved. In contrast to Appendix B of the Civil Rules, the Family Rules do not define a “half day”. Whether this omission is by design is impossible to say based on the evidence and submissions presented at this assessment. However, I find that as a matter of common sense, the definition employed in the Civil Rules can be imported into an assessment of costs in a family law proceeding.

It has long been accepted that in determining whether a matter consumed a half day or more, the time is measured from when chambers opens, not when the particular application is actually called. Under the Civil Rules, the registrar allows for a full day if a chambers hearing begins in the morning but carries on into the afternoon sitting of the court. The Family Rules do not reference full days, only half days. Thus, in this case, the two one-half days claimed are allowed. Disbursements [ 8 ] The claimant does not take issue with the claims for photocopies, facsimile and postage.

Those charges are allowed as presented. JC Word Assist Transcript [ 9 ] This charge relates to a transcript of the January 17, 2012 appearance before Dillon J. to speak to the final order. The respondent ordered the transcript for use at the variation application.

The affidavit of justification asserts that the charge was justified because reference is made to the transcript in the reasons issued by Humphries J. [ 10 ] The claimant says that obtaining the transcript was neither necessary nor proper as the result of the appearance before Dillon J. was an uncontested order. [ 11 ] I find that it was at least proper if not necessary for the respondent to order the transcript. The variation application sought to change terms of the final order which were the subject matter of some inquiries and comments by Dillon J.

The transcript was more than the simple recording of counsel reading in terms and the court pronouncing the order. The submissions made by the parties before Dillon J. proved to be of some assistance Humphries J. in determining the variation application. The transcript is the only source for those submissions. The reasonableness of the charge is not challenged by the claimant. This disbursement is allowed. Bradley and Jacoby Account [ 12 ] This disbursement relates to an accountant’s invoice “For analysis and preparation of

schedule and letter for IA Clarington investment and loan”. The signatory on the account presented in evidence is Wm. H. Bradley, CGA. [ 13 ] The necessity or propriety of incurring this disbursement for the variation application is not entirely clear on the evidence. The affidavit of justification merely identifies the invoice and states that a letter from Mr. Bradley was provided to Humphries J. and referenced in the reasons for judgment. Nevertheless, upon review of tho se reasons, the propriety of obtaining information from the accountants is demonstrated.

The claimant sought to vary the final order by including monies from the IA Clarington investment in the respondent’s income. The final order exempted those funds as income. Reading somewhat between the lines, the court relied on Mr. Bradley’s letter/information to decide against varying this aspect of the final order. This disbursement is also allowed as presented. Result [ 14 ] Pursuant to the order of Humphries J. the respondent is entitled to $2,000 in fees and disbursements of $384.15. With applicable taxes, the total costs award is $2,670.23.

The claimant reserved the right to make submissions on the costs related to this assessment, depending on the result. The Family Rules do not offer any allowances for the assessment process so such submissions are not needed. [ 15 ] A certificate of costs may be forwarded for my endorsement through Supreme Court Scheduling in the Victoria Registry. “C.P. Bouck” Master C.P. Bouck