M.T.R.M. v. H.F.S., 2015 BCSC 1352

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.T.R.M. v. H.F.S., 2015 BCSC 1352 Date: 20150703 Docket: E120729 Registry: Vancouver Between: M.T.R.M. Claimant And H.F.S. Respondent Before: The Honourable Mr. Justice Fitch Oral Ruling re Costs In Chambers Counsel for the Claimant: Liana T. Murphy Appearing on his own behalf: H.F.S. Place and Dates of Hearing: Vancouver, B.C. May 28 and June 17, 2015 Place and Date of Judgment: Vancouver, B.C. July 3, 2015 [ 1 ] THE COURT: Reasons for judgment in this family law case were released March 16, 2015.

Those reasons are indexed at 2015 BCSC 397 . [ 2 ] At the conclusion of those reasons, I gave the parties leave to speak to the issue of costs. Both parties made written and oral submissions outlining their positions. [ 3 ] Both parties submit they were successful or substantially successful at trial, and both seek costs pursuant to Rule 16-1(7) of the Supreme Court Family Rules , B.C.

Reg. 169/2009. [ 4 ] The background facts are fully canvassed in my reasons for judgment and do not need to be repeated. [ 5 ] For the purposes of this application, it is sufficient to note that the contentious issues at trial related to: the division of family assets; the determination of parenting arrangements and the allocation of parenting time and parental responsibilities in relation to the 11-year-old child of the marriage who resides with the claimant; whether income should be imputed to the respondent; child support payable by the respondent; and the respondent's obligation (retroactively and prospectively) to pay special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines . [ 6 ] In terms of property division, the family assets consist of $37,564.41 being held in trust by the law firm representing the claimant pending the resolution of this action.

These funds represent the residue of the proceeds realized from the judicially-ordered sale of the former matrimonial home. A small amount of money ($391.74) was added to this sum following my order that an insurance refund owed to the parties be paid in trust to the claimant's law firm.

With accrued interest, the family assets being held in trust and to be divided between the parties total $38,454.19. [ 7 ] Both parties agreed at trial to the equal division of family assets, but each sought various adjustments and/or reimbursement for loans or amounts each party said they paid on behalf of the other following separation, including mortgage payments, insurance payments, payments for household expenses and household repairs. [ 8 ] The claimant sought numerous adjustments to take account of money she says she paid to the respondent to service family debt or pay expenses after leaving the matrimonial home.

The claimant also sought an adjustment that would allocate to the respondent the entirety of the responsibility for mortgage arrears owing on the former matrimonial home at the time of its sale. The adjustments sought by the claimant would, if allowed, allocate to her the whole of the sum being held in trust. [ 9 ] The respondent, who was self-represented at trial, sought adjustments obliging the claimant to pay what he said amounted to her share of pre-separation family debt totalling $8,500. Neither party was successful in their claims for adjustments to the division of

family assets. [ 10 ] I ordered that the funds being held in trust be divided equally between the parties, subject to the attachment order issued by the Director of Maintenance Enforcement against the respondent. As of October 22, 2014, the respondent owed child support arrears totalling $4,089.65.

As a consequence, the child support arrears must be deducted from the respondent's share of family assets by the Family Maintenance Enforcement Program. [ 11 ] Given the amounts of their respective adjustment and/or reimbursement claims, the respondent was successful to the extent that he resisted the claimant's proportionately larger claim. [ 12 ] With respect to the determination of the respondent's Guidelines income for child support and s. 7 expense purposes, the respondent said his income at the time of the trial was between $43,000 and $46,000 per annum.

He resisted an order imputing income to him in a greater amount. The respondent testified that he voluntarily reduced his hours of work a couple of years ago from 40 to 32 hours per week. He says he did so following medical advice. There was no independent evidence confirming the respondent's contention on this point and I rejected his evidence as untrustworthy. I also rejected the respondent's evidence that he is no longer capable of working a 40-hour work week due to the physical demands of his job.

Based on his regular hourly wage and assuming a 40-hour work week, I imputed to the respondent an annual Guidelines income of $54,933 for child support and s. 7 expenses. In the result, the claimant was successful on this point. [ 13 ] With respect to s. 7 expenses, I dismissed the claimant's contention that she should be reimbursed retroactively for extraordinary expenses relating to the child's guitar and tae kwon do lessons.

I did so because most of these claims were dismissed following an interim application heard by Master Taylor in August 2012. [ 14 ] Moving forward, however, I ordered that the parties, who currently have roughly equivalent incomes, share proportionate to their incomes the cost of the child's guitar lessons. While the respondent supports, at least in theory, his son's guitar lessons, he took the position at trial that he was unable to afford the costs associated with them. The child takes a good deal of pride in his musical accomplishments.

It is clearly to the child's benefit that he continue to take guitar lessons, and it is well within the means of the parties to support him in this endeavour. [ 15 ] I also allowed the claimant's request to be reimbursed for one-half of the daycare costs attributable to the child for the years 2012 and 2013. The respondent submitted that these daycare costs were unnecessary and that he could have cared for the child when necessary, had the claimant agreed to a co-parenting arrangement.

The respondent's position on this point was wholly impractical and does not reflect the state of affairs that existed when the childcare costs were incurred. The claimant could not reasonably place reliance on the respondent's offer of childcare assistance and, given his intense animus towards her, the suggestion made by the respondent on this point lacks any air of reality. The fact of the matter is that the respondent has not done his share to shoulder the financial and emotional burden of parenting the child through the marital breakdown. That burden has been disproportionately carried by the claimant.

The respondent's contention that he could have provided childcare in a more cost-effective way following the separation represents an after-the-fact offer of assistance that was not genuinely extended at the time it was needed most and was, in any event, unworkable. [ 16 ] In addition, I ordered the respondent to pay the claimant, from his share of family assets, one-half of the $200 cost of referring the child to a psychologist in 2013. [ 17 ] Moving forward from the date of the trial, I ordered that allowable special expenses will include daycare costs attributable to the child, together with reasonable expenses relating to psychological counselling for the child as may be recommended by the child's school officials or healthcare providers. [ 18 ] Finally, I ordered that unpaid costs owing by the respondent to the claimant in relation to the interim application heard by Master Taylor be deducted from the respondent's share of the family assets and paid to the claimant.

I made this order pursuant to Rule 16-1(15) of the Supreme Court Family Rules . [ 19 ] Taking into account all of these amounts, I ordered that the total sum of $2,578.48 be deducted from the respondent's share of family assets and paid to the claimant. In the result, the claimant was largely successful in achieving the relief she sought at trial in relation to s. 7 expenses and the recovery of costs owing as of the date of trial. [ 20 ] With respect to parenting time and the allocation of parental responsibilities, the claimant was entirely successful.

She sought an order that the child of the marriage reside with her and that the majority of parental responsibilities be allocated to her. She agreed to the respondent exercising daytime parenting time with the child, but only for a few hours per visit and subject to further mechanisms being put in place by the Court to ensure the child's well-being. For his part, the respondent sought a shared custody and co-parenting arrangement that would involve the child living alternate weeks with both parties in residences in Burnaby where the claimant resides and Vancouver where he lives.

He also sought the equal allocation of parental responsibilities consistent with his shared custody and co-parenting proposal. [ 21 ] In my reasons for judgment, I explained why the relief sought by the respondent was unrealistic and would be detrimental to the child.

In short, I found that the respondent made no effort to hide his intense animus towards the claimant while in the presence of the child, actively undermined the child's love and respect for his mother, actively sought to align the child with his cause, including planting in the child's mind the notion that he has been impoverished by the marital breakdown, is ill and dying, and said the claimant was responsible for evicting everyone from the matrimonial home, which he told the child was his "birth right". [ 22 ] I found that the respondent falsely accused the claimant of child abuse.

I also found that he sought to intimidate her, including on one occasion in front of the child. [ 23 ] The respondent accused the claimant and her sisters of plotting against him. He testified the child knows his mother to be a liar.

[24] The respondent's evidence left the Court with an abiding concern about his emotional state and ability to grasp the negativeimpact his own behaviour has on the child's emotional security, well-being, and long-term development. [25] For reasons more fully developed in the main judgment, I was satisfied that it is not in the best interests of the child to haveunsupervised, in-person contact with the respondent until such time as further information is put before the Court with respect to hisability and willingness to meet the child's needs.

Indeed, the respondent had only seen his child on a handful of occasions in 2014,before the commencement of the trial in late October. [26] In these circumstances, I directed the preparation of a report under s. 211 of the Family Law Act, S.B.C. 2011, c. 25, addressingthe respondent's parenting capacities. The Family Justice Report Service has been tasked with the preparation of this report. [27] Pending completion of that report, I directed that the child reside with the claimant and that she have exclusive authority toexercise the rights and responsibilities identified under s. 41 of the FLA.

The respondent was given the right to apply to the Court forinterim supervised daytime visits between himself and the child. [28] None of the allegations levelled against the claimant by the respondent at trial are true, and yet each of them, particularly thechild abuse allegation and the respondent's repeated suggestions that the claimant is an unfit and untrustworthy mother, unnecessarilyadded to the length of the trial. [29] Rule 16-1(7) provides: Subject to subrule (9), costs of a family law case must be awarded to the successful party unless the court otherwise orders. [30] It is settled law that costs in a family proceeding should be dealt with as in civil proceedings, such that the successful party isentitled to his or her costs unless otherwise ordered by the court: Gold v.

Gold (1993), (BC CA), 82 B.C.L.R. (2d)180 (C.A.). [31] As to when a court should order "otherwise", factors such as hardship, earning capacity, the purpose of the award, the conductof the parties in the litigation, the potentially negative impact of the cost award on the best interests of the child, and the importance ofnot upsetting the balance achieved by the order may be relevant to the exercise of judicial discretion. [32] Given his position with respect to costs, it is unclear to me whether the respondent is asserting hardship in the event the Courtdetermines the claimant was successful, or substantially successful, in the litigation.

As the respondent is unrepresented andunderstandably had difficulty articulating his position on this point, I will proceed on the assumption that he is making such a claim. [33] In my view, there is no foundation upon which the respondent could successfully advance such a position. The annual earningsof the parties at the time of the trial were roughly the same. The respondent has resisted paying child support. He is now in substantialarrears. His actions have forced the claimant to take enforcement measures.

While the breakdown of the marriage has been financiallydevastating for both parties, the respondent has no greater claim to hardship than the claimant. In fact, his intransigent refusal to paychild support and work cooperatively with the claimant in parenting their child has created hardship for her. I would add that there is noevidence before me for a hardship claim based on any current medical condition that prevents the respondent from working fulltime.

While I accept that the respondent is under a good deal of financial and emotional pressure, he is in some ways the architect of his ownmisfortune. [34] In cases where one party has achieved substantial success, the court may award only a portion of the substantially successfulparty's costs.

Substantial success in an action should be decided by looking at the various matters in dispute and weighing their relativeimportance. [35] The correct approach is to identify the matters in dispute at trial, assess the weight or importance of these matters to the parties,determine which party substantially succeeded in the action by doing a global determination with respect to all matters in dispute, and,finally, where one party substantially succeeded, consider whether there are reasons to order that the successful party be deprived of hisor her costs such that each side should bear their own costs. [36] The most significant issue at trial was how the best interests of the child should be reflected in an order respecting parentingarrangements, parenting time, and the allocation of parental responsibilities.

The majority of the evidence at trial was directed towardsthese issues. [37] A substantial body of evidence was also adduced, particularly by the claimant, regarding the adjustments she submitted shouldbe taken into account in the division of family assets. Although success was divided on this particular issue, the respondent was, as Ihave said, successful in resisting the claimant's more extensive adjustment and reimbursement claims.

In my view, it is necessary toreflect this fact in the costs award. [38] The imputation of income for child support purposes was also an important issue, given that the child of the marriage is 11years of age and the claimant will derive long-term benefit from ongoing support payments that will assist her in supporting the child. Effectively, the claimant has acted as a single mother since separation. She has had difficulty recovering child support payments fromthe respondent, and has had to look to her family for financial assistance in the years between the separation and trial.

This was also animportant issue at trial, and the claimant was successful in having income imputed to the respondent. [39] While the claimant was also largely successful in relation to s. 7 expenses, I would assign less weight to this issue. [40] Weighing the relative importance of the matters in dispute and performing a global assessment of the way in which thecontentious issues were resolved, I conclude that the claimant was substantially successful in the litigation. [41] In light of the way in which the various issues were resolved, I am also of the view that this is an appropriate case to apportion

costs on a percentage basis.

The claimant shall have 70 per cent of her costs and the respondent shall have 30 per cent of his costs, which amounts are to be set off against one another. [ 42 ] The claimant seeks a further order that costs payable to her following the setoff be paid from the respondent's share of the funds being held in trust which, as noted earlier, will be determined after FMEP's attachment order has been given effect. [ 43 ] Pursuant to Rule 16-1(15), I ordered in the main judgment that costs payable by the respondent that arose out of the applications dealt with by Master Taylor in 2012 be deducted from his share of the family assets being held in trust once FMEP's attachment order is executed.

Those costs are relatively modest; they total about $1,200. [ 44 ] The question is whether a similar order should be made in relation to the much more substantial costs the respondent will be obliged to pay as a consequence of this ruling. [ 45 ] Acceding to the claimant's position on this point would likely deprive the respondent of any share of the funds being held in trust. The impact such an order would have on the respondent is different in kind from the order made in the main judgment with respect to the recovery of costs arising out of the applications heard by Master Taylor.

I am satisfied that this is a factor to be considered, particularly at a time when the respondent is seeking to re-establish himself financially, stabilize himself emotionally, and re-establish regular and meaningful contact with his son. Whether the respondent is able to accomplish these goals very much lies in his court, but I am satisfied that the order the claimant seeks would likely destabilize the respondent and impair his ability to normalize future relations with the claimant and his son in a way that may advance the long-term best interests of his child.

Taking these considerations into mind and balancing them against the claimant's understandable interest in the granting of such an order, given her unfortunate history with the respondent, I decline to make the further order sought by the claimant. [ 46 ] The Court will stand down for a few minutes before we proceed with the other applications. [ 47 ] MS. MURPHY: I just have a question, My Lord, if I might. So are you suggesting that the 70 per cent costs and 30 per cent costs in her case don't have to be paid from the share?

Is that what you're suggesting? [ 48 ] THE COURT: I am saying that the set-off in terms of costs will be 70 per cent to the claimant, 30 per cent. [ 49 ] MS. MURPHY: Right. [ 50 ] THE COURT: I am not ordering that the costs be paid from the disposition of the family assets held in trust. [ 51 ] MS. MURPHY: The difficulty is, is H.F.S. doesn't have counsel costs and I'm not aware of what costs he might have incurred. [ 52 ] THE COURT: Filing fees, disbursements, that kind of -- [ 53 ] MS. MURPHY: Filing fees and disbursements.

I'm concerned about this taking a long time to resolve before, you know, the parties see their funds, and then my understanding of the FMEP is that, aside from what is ordered to be taken from his share, the balance of his share has to go to them, and then they disburse it to him or whatever. So what you're saying is this should all be done prior to me giving the funds to FMEP? [ 54 ] THE COURT: Well, FMEP's claim on -- [ 55 ] MS. MURPHY: Is against his share. [ 56 ] THE COURT: Is against his share. [ 57 ] MS. MURPHY: Yes. [ 58 ] THE COURT: Subject to the adjustments in my order. [ 59 ] MS.

MURPHY: Right. [ 60 ] THE COURT: Those shares are equally divided. [ 61 ] MS. MURPHY: Right. [ 62 ] THE COURT: FMEP will take its share of his portion. [ 63 ] MS. MURPHY: Right, so -- [ 64 ] THE COURT: As far as costs, the set-off is 70 to 30, and you can take remedies to recover them, but not out of his share. [ 65 ] MS. MURPHY: Okay. So you had said the $2,578 was to be deducted from his share. I believe -- was that -- that was -- you were referring to the child daycare costs, so that is to be deducted from his share? [ 66 ] THE COURT: Correct. [ 67 ] MS.

MURPHY: The daycare costs, okay. [ 68 ] THE COURT: Correct, if you go through the order, that amount referred to -- [ 69 ] MS. MURPHY: Right.

[ 70 ] THE COURT: -- daycare. [ 71 ] MS. MURPHY: And the Master Taylor amount -- [ 72 ] THE COURT: Yes. [ 73 ] MS. MURPHY: -- was okay to be deducted. I just wanted to confirm that I understand. [ 74 ] THE COURT: Yes. [ 75 ] MS. MURPHY: So I don't have to come back before Your Lordship. [ 76 ] THE COURT: Yes. [ 77 ] MS. MURPHY: I apologize -- [ 78 ] THE COURT: Yes. [ 79 ] MS. MURPHY: -- for taking time. So the $1,220 -- [ 80 ] THE COURT: Is to be deducted from his share. [ 81 ] MS.

MURPHY: -- 48 is to be deducted, okay, so daycare, the Taylor costs, Master Taylor costs, and then if I understand Your Lordship, we can do -- we've already done a bill of costs, draft bill of costs of our client, so if we took what is 70 per cent of that was, that would -- we are able to determine the costs right now, because I have done the draft bill. So then you are saying if he -- it should be set off against his 30 per cent, but we can't take it from -- that part from his share? [ 82 ] THE COURT: Correct. [ 83 ] MS. MURPHY: Correct. I'm just very concerned.

It's been a -- [ 84 ] THE COURT: I understand -- [ 85 ] MS. MURPHY: Been a little bit difficult. [ 86 ] THE COURT: -- the nature of the concern. [ 87 ] MS. MURPHY: Yeah. [ 88 ] THE COURT: On the other hand, the Court has to have in mind the potential for H.F.S. to re-establish some kind of normal connection with his child, and I am concerned about the destabilizing impact the kind of award you are seeking would have on him and potentially on the long-term best interests of the child. That is why I have declined to do that. [ 89 ] MS.

MURPHY: So assuming that our 70 per cent obviously exceeds his 30 per cent, I can then pay out my client her half plus the amount from his share. [ 90 ] THE COURT: Correct. [ 91 ] MS. MURPHY: Okay. Perhaps Your Lordship could direct H.F.S. with a timeframe in which he is to provide his receipts, and of course they would have to be relevant to the trial. [ 92 ] THE COURT: I think that is fair.

H.F.S., what do you need in terms of time to itemize and total your costs? [ 93 ] H.F.S.: Well, My Lord, you know, I have approximately 40, 50 pounds of paper provided by the various departments that I've gone to, the typing that I've had, everything else, and I would be hard pressed to put together all my statements.

Suffice to say that I've done everything I can to respond and to file and there has been a substantial amount of cost to me, given my income and I believe that you have a relative idea, given the length of this process, that I've definitely had to put out. [ 94 ] THE COURT: You are going to have to make this a priority. It needs to be determined quickly, so both of you can obtain your respective shares. Yours will be less, but nonetheless, you will obtain something so you can move on from this. [ 95 ] H.F.S.: So are you saying that you require the FMEP to do their job and due diligence before Ms.

Murphy starts slicing and dicing. [ 96 ] THE COURT: I am not sure how the mechanics work, but you are not going to get your share until FMEP deducts the amount currently owing, I know that. [ 97 ] H.F.S.: And Ms. M.? [ 98 ] MS. MURPHY: My Lord, I can clarify, is the attachment, which unfortunately I didn't bring with me, the way it reads is that whatever -- after your order, whatever comes off his share, in other words whatever his share ends up at -- [ 99 ] THE COURT: Right. [ 100 ] MS. MURPHY: -- after these deductions, that whole amount has to be sent to FMEP because they have to redo the support calculation.

[ 101 ] THE COURT: And then they remit the balance back to him. [ 102 ] MS. MURPHY: And then they give him the difference. [ 103 ] THE COURT: So that is how it works. So M.T.R.M. or M.T.R.M.'s counsel will do the calculations, provide a draft to you presumably. [ 104 ] MS. MURPHY: Oh, I think he gets the money from FMEP, My Lord. [ 105 ] THE COURT: Yes, but just in terms of the deductions. [ 106 ] MS. MURPHY: Oh, yes. [ 107 ] THE COURT: So you are going to end up with an amount -- [ 108 ] MS. MURPHY: Correct. [ 109 ] THE COURT: -- that belongs to H.F.S. [ 110 ] MS.

MURPHY: Correct. [ 111 ] THE COURT: And you are going to share that with H.F.S., so he has an opportunity to look at the calculations and my judgment. [ 112 ] MS. MURPHY: Yes, so -- [ 113 ] THE COURT: Then your amount, H.F.S., once that is concluded, will be sent to FMEP. They will take out of your share the amount that is owing under the attachment order. You will then get a remission of the balance. [ 114 ] H.F.S.: Thank you, My Lord, I need that. I need that. [ 115 ] MS. MURPHY: That's all I have for clarification. [ 116 ] THE COURT: Does that clarify things, Ms. Murphy? [ 117 ] MS.

MURPHY: Mm-hmm. [ 118 ] THE COURT: Thank you. [ 119 ] H.F.S.: I took the opportunity a couple of months back to speak to FMEP and they have since returned my call, just of recently. They informed me that they thought that the amounts of arrears were minimalistic and that in fact, that I was with this slight adjustment of $50 a month that Your Lord had suggested, that I would probably be in good standing, and I would let My Lord take the break that you've described. [ 120 ] THE COURT: Yes. I am just going to establish a bit of a timetable if it would assist the parties moving this forward.

Would it make sense, H.F.S., Ms. Murphy, for you to do the initial calculation and provide that to H.F.S., say by July 10? I am not sure what your holiday plans are, or whether that is possible. [ 121 ] MS. MURPHY: Oh, yes, I am leaving town on the 10th. [ 122 ] THE COURT: Yes, sure. [ 123 ] MS. MURPHY: Well, yes, I can provide the calculation because, as I understand it, it is that total amount we hold in trust, divided in half, and then taking those two amounts off his share. [ 124 ] THE COURT: Correct. [ 125 ] MS. MURPHY: That should be very quick for me to do.

I can have it certainly before I leave on the 10th. [ 126 ] THE COURT: All right, so that by July the -- [ 127 ] MS. MURPHY: I am only gone till the 16th, sir. [ 128 ] THE COURT: That by July 10. H.F.S., you are to advise Ms.

Murphy whether you have any objections to the way in which the calculation has been done by July 17. [ 129 ] H.F.S.: Thank you, My Lord. [ 130 ] THE COURT: If those cannot be worked out, you have leave to bring them back to me, but it is a pretty simple calculation and I cannot imagine that the parties are going to have difficulty with that. [ 131 ] The parties should exchange their bills of costs by -- again, what date would be reasonable from your perspective, Ms. Murphy? [ 132 ] MS.

MURPHY: Well, I have a draft bill of costs, but it had included the Master Taylor amount, but I think, since I had done the draft bill of costs, if I just adjust that and take out the -- you know, make it -- obviously take 70 per cent. I had done a bill of costs on just the regular Part A scale of difficulty, ordinary difficulty, so I could probably again produce that to him by the 10th.

[ 133 ] THE COURT: All right. [ 134 ] MS. MURPHY: Just -- it's just going to be hard because it will take a long time for people to get their money otherwise, right, so I'm -- [ 135 ] THE COURT: Right, and H.F.S., yours to Ms. Murphy by July 24. [ 136 ] H.F.S.: I'll do what I can, My Lord. I doubt if I'll be able to ascertain all the receipts. It wasn't as my priority thinking. Sorry, My Lord, you said you wanted me to have them by when? [ 137 ] THE COURT: July 24. Ms. Murphy is going to provide you with a calculation of your bill of costs. You are going to provide her with your bill of costs by July 24. Costs will be assessed if necessary thereafter. "FITCH J."