Mansoor v. Mansoor, 2012 BCSC 1811

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mansoor v. Mansoor, 2012 BCSC 1811 Date: 20121204 Docket: E33951 Registry: New Westminster Between: Deborah Juliet Mansoor Claimant And Sadiq Mohammed Ali Ahmed Mansoor Respondent Before: The Honourable Madam Justice Gropper Supplementary Reasons to: A decision of the Supreme Court of British Columbia, dated April 26, 2012, ( Mansoor v. Mansoor , 2012 BCSC 602 , New Westminster E33951) Supplementary Reasons for Judgment Counsel for the Claimant: M. Ramage Counsel for the Respondent: R. Swartzberg Place and Date of Trial: New Westminster, B.C.

September 19-23 and December 2, 2011 Place and Date of Judgment: Vancouver, B.C. April 26, 2011 Place and Date of Written Submission: New Westminster, B.C. July 31, 2012 Place and Date of Supplementary Reasons for Judgment: Vancouver, B.C. December 4, 2012 Introduction [ 1 ] In my reasons for judgment, 2012 BCSC 602 I awarded the claimant the costs of this action. The claimant seeks an award of double cost on the basis that she made an offer to settle on December 9, 2010 to counsel for the respondent. [ 2 ] Ms Mansoor made her submissions in writing. Mr. Mansoor did not make any submissions on the issue of costs.

Offer to Settle [ 3 ] On December 9, 2010, the claimant made a formal offer to settle to Mr. Mansoor. The claimant’s offer sought to divide the proceeds of sale of the family home equally between the parties, after deducting a debt to PODS storage which held the parties’ chattels. The offer proposed an imputed income to the respondent of $74,550.00. Ms Mansoor sought certain lump sums to be paid in respect of retroactive and prospective support, both child and spousal, and s. 7 expenses, out of Mr.

Mansoor’s share of the proceeds. [ 4 ] The offer would have provided the respondent, after deduction of the support amounts, with almost $185,000.00 from the proceeds of the sale of the family home. [ 5 ] The claimant reiterated the offer on June 6, 2012. The respondent did not agree to the offer. Double Costs [ 6 ] Rules 11-1(5) and (6) of the Supreme Court Family Rules provide: Cost options

(5) In a family law case in which an offer to settle has been made, the court may do one or more of the following: (

a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled inrespect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle; (

b) award double costs of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle; (

c) award to a party, in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer tosettle, costs to which the party would have been entitled had the offer not been made; (

d) if the offer was made by a respondent and the judgment awarded to the claimant was no greater than the amount of the offer to settle,award to the respondent the respondent's costs in respect of all or some of the steps taken in the family law case after the date of deliveryor service of the offer to settle. [am. B.C. Reg. 119/2010, Sch. B, s. 12.] Considerations of court

(6) In making an order under subrule (5), the court may consider the following: (

a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was deliveredor served or on any later date; (

b) the relationship between the terms of settlement offered and the final judgment of the court; (

c) the relative financial circumstances of the parties; (

d) any other factor the court considers appropriate. [7] In Hartshorne v. Hartshorne, 2011 BCCA 29, the Court of Appeal addressed the double cost rule and its guiding principles atpara. 25: 25 An award of double costs is a punitive measure against a litigant for that party's failure, in all of the circumstances, to haveaccepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place "to encourage theearly settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines toaccept such an offer" (A.E. v.

D.W.J., 2009 BCSC 505, 91 B.C.L.R. (4th) 372 at para. 61, citing MacKenzie v. Brooks, 1999 BCCA 623,Skidmore v. Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 (C.A.), Radke v. Parry, 2008 BCSC 1397). In thisregard, Mr. Justice Frankel's comments in Giles are apposite: [74] The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. Inaddition to indemnifying a successful litigant, those purposes have been described as follows by this Court: * "[D]eterring frivolous actions or defences": Houweling Nurseries Ltd. v.

Fisons Western Corp. (1988), (BCCA), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref'd, [1988] S.C.C.A. No. 200 * "[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the oppositeeffect": Skidmore v. Blackmore (1995), (BC CA), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.); * "[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v.

McGill, 2008BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33; * "[T]o have a winnowing function in the litigation process" by "requir[ing] litigants to make a careful assessment of the strengthor lack thereof of their cases at the commencement and throughout the course of the litigation", and by "discourag[ing] the continuanceof doubtful cases or defences": Catalyst Paper Corporation v. Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17at para. 16. [8] The claimant refers to the factors and submits that her offer of December 9, 2010 ought to have been reasonably accepted bythe respondent.

It was comprehensive and addressed every issue in the proceedings. It would have resolved the proceedings nine monthsbefore the trial commenced. [9] The claimant submits that monetarily speaking; the terms of the settlement offer were far more favorable to the respondent thanthe ultimate judgment. If the respondent accepted the offer, he would have received about $185,000.00 from the proceeds of the familyhome which were held in trust. The judgment provided him with less than $15,000.00 of the proceeds. Further, respondent’s income wasimputed at an amount $4,500.00 higher than the settlement offer made.

The settlement offer also proposed sharing of the PODS storagedebt which I ordered the respondent to bear entirely. [10] The claimant says that the comparison of the relative financial circumstances of the parties was one of the major issues at trial. Ifound that the respondent had failed to disclose his financial circumstances and was likely hiding income and/or assets.

On that basis theclaimant says that the respondent should be assumed to have more financial means than she does and is therefore in a position to paydouble costs. [11] The claimant refers to other factors including the respondent’s failure to make disclosure during the proceedings and a trial; hisfailure to pay support even after my reasons were published; the respondent withdrew the RESP funds which were intended for theparties’ daughters’ education; and the respondent failed to agree to release any of the funds in trust, even those which were undisputedpending settlement of the order.

[ 12 ] The claimant has provided a draft bill of costs. If double costs are awarded for all steps taken after December 20, 2010, the total award of cost should be $56,944.76.

Discussion [ 13 ] As stated, the respondent chose not to file a submission in response to the claimant’s claim for double costs. [ 14 ] I have canvassed the factors which the claimant has provided in her submission and consider that each supports an award of double costs for all the steps taken in this family law case after the date of delivery or service of the offer to settle. [ 15 ] In accordance with R. 11-1(6), I find that the offer to settle was one that ought to reasonably have been accepted, on or about the date that it was made; that the terms of the settlement offer were more favourable to the respondent than what was awarded in the judgment.

I found the respondent failed to openly disclose his financial circumstances and imputed income to him, which demonstrates that he is in a better financial circumstance than that of the claimant. I also considered the other factors to which the claimant refers. [ 16 ] I therefore order that the claimant is entitled to costs in the amount of $56, 944.76, plus disbursements plus tax. “Gropper, J”