Hartnell v. Hartnell, 2024 BCCA 13

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Hartnell v. Hartnell, 2024 BCCA 13 Date: 20240112 Docket: CA48514 Between: David Philip Hartnell Appellant (Claimant) And Crystal Sinnika Hartnell also known as Crystal Sinnika Lagerbom Respondent (Respondent) Corrected Judgment: The cover page of the judgment was corrected on January 17, 2024. Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Stromberg-Stein The Honourable Madam Justice Horsman Supplementary Reasons to Hartnell v. Hartnell , 2023 BCCA 467 , Vancouver Docket CA48514. Counsel for the Appellant: A.S.K.

Wormeli Counsel for the Respondent: I.M. Knapp J. Wang, Articled Student Place and Date of Hearing: Vancouver, British Columbia December 1, 2023 Place and Date of Judgment: Vancouver, British Columbia December 6, 2023 Written Submissions Received December 15 and 21, 2023 Date of Supplementary Judgment January 12, 2024 Supplementary Written Reasons of the Court

Summary: By reasons indexed as 2023 BCCA 467 , the court allowed the appeal by deleting a term of the order that was ambiguous in addressing a hypothetical future event and a term awarding retroactive support absent determination of the parties’ incomes. That issue was remitted to the trial court. The parties contested the issue of costs of the appeal. Held: No costs are awarded, neither party having achieved substantial success.

Supplementary Reasons of the Court: [ 1 ] By oral reasons for judgment given December 6, 2023, indexed as 2023 BCCA 467 , we allowed the appeal from an order establishing terms relating to parenting arrangements and support for the parties’ two children. With the assistance of counsel, the appeal before us narrowed to two matters that required this court’s intervention, a term addressing a hypothetical future move of one parent and terms concerning retroactive child support. [ 2 ] We held that the term concerning the hypothetical move is ambiguous and set it aside.

We also held that terms relating to retroactive child support were made absent findings of the parties’ incomes. Accordingly, we set aside those terms and remitted the issue of retroactive support to the trial court. At the same time we provided an opportunity to the parties to make submissions on the issue of costs should they wish to do so, failing which we said there would be no order of costs.

[ 3 ] Each party has made a submission on costs. These reasons respond to the submissions made. [ 4 ]

Section 44 of the Court of Appeal Act provides: 44

(1) Unless the court or a justice orders otherwise, a party who is successful on an appeal is entitled to costs of the appeal, ... [ 5 ] The term “successful” is measured on a scale of “substantial success”. In McLeod v. Law Society of British Columbia , 2023 BCCA 217 , the court explained: [12] ... Entitlement to costs, of course, is determined in accordance with substantial success, rather than complete success: Russell v Craigflower Housing Cooperative , 2022 BCCA 121 at paras 7–8 ; Cepuran v Carlton , 2022 BCCA 376 at para 16 .

The assessment of which party enjoyed substantial success is not a matter for mathematical calculation based on issues, but rather is measured by the overall effect of the judgment, taking into account a broad array of factors as the Court sees fit: Russell at paras 7–8 ; Pineau v KMI Publishing and Events Ltd , 2023 BCCA 94 at para 3 . [ 6 ] The appellant, through counsel, seeks costs on the basis he was substantially successful. He observes that our order set aside most of the terms contested in his factum, and his success came at significant cost to him for the transcripts of the proceedings.

He notes that resolution of several of the issues advanced by him were resolved only on the day of the hearing and so he was required to prepare for the hearing and to attend the appeal, all of which are steps properly compensable in costs. [ 7 ] The respondent, through counsel, contests the issue of substantial success and says that in the circumstances there should be no order of costs, that is, each party should bear their own costs.

She observes that because several of the orders sought were settled outside of the courtroom, we lack evidence that would allow us to assess the reasonableness of the positions taken by the parties and the necessity for the appearances before us. She says, further, that on a broad view of the appeal, one cannot say that the appellant enjoyed substantial success. [ 8 ] We recognize that the cost of transcripts is often a burden in an appeal. To some extent the transcripts were required here because issues initially raised but not in issue at the hearing of the appeal, engaged factual determinations.

In any case, the incidence of the cost of transcripts does not have a material affect on the issue of substantial success. [ 9 ] The order we made responded to ambiguity in the trial court’s order and an absence of factual findings to ground retroactive support. This latter issue has been returned to the trial court and its ultimate disposition is unknown.

While on its face the order is recorded as allowing the appeal, we cannot say that either party can be said to have been sufficiently successful as to qualify for an order of costs in their favour. [ 10 ] Accordingly, no costs are awarded in respect of the appeal. “The Honourable Madam Justice Saunders” “The Honourable Madam Justice Stromberg-Stein” “The Honourable Madam Justice Horsman”