Slaughter v. McCormick, 2003 BCSC 467

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Slaughter v. McCormick, 2003 BCSC 467 Date: 20030328 Docket: F992514 Registry: Vancouver Between: Richard Leslie Slaughter Plaintiff And Dawn Carol McCormick Defendant - and - Docket: E010367 Registry: Vancouver Between: Dawn Carol McCormick Plaintiff And Richard Leslie Slaughter Defendant Before: The Honourable Mr. Justice Harvey Reasons for Judgment (in Chambers) Counsel for Richard Leslie Slaughter: J. Grieve Dawn Carol McCormick Appearing in person Date and Place of Hearing: March 25, 2003 Vancouver, B.C. [ 1 ] The plaintiff, Richard Leslie Slaughter, in the Action No. F992514 ("the "F" action") has two applications: (

a) for an order and declaration under the provisions of s. 69.3 of the Bankruptcy and Insolvency Act , R.S.C. 1985 c. B-3 (the " Act "); (

b) for security for costs for the trial of Action No. E010367 ("the "E" action"). [ 2 ] In the course of the application, the application for security for costs related to the "E" action was withdrawn. [ 3 ] The order and declaration requested, including quantifying the plaintiff Slaughter's entitlement to costs is granted. [ 4 ] The defendant, Dawn Carol McCormick in the "F" action filed an assignment in bankruptcy on February 14, 2003.

[ 5 ] The defendant McCormick has a liability for costs in the "F" action. Costs in that action were addressed before me on February 28, 2003.

Costs were granted on Scale 3, which resulted in a judgment for costs of approximately $90,000. [ 6 ] The plaintiff Slaughter in the "F" action was not informed of the filing in bankruptcy until March 10, 2003. [ 7 ] In the circumstances here, I consider it appropriate under the provisions of s. 69.3 of the Act to make the declaration sought by the plaintiff Richard Leslie Slaughter in the "F" action, and with regard to quantifying his entitlement to costs. [ 8 ] Counsel for the plaintiff in the "F" action further submits that in the circumstances there should be a set off against any existing any continuing obligation the plaintiff Slaughter may have.

The reference here is clearly related to interim support by way of a court order to that effect and arrears under the order. [ 9 ] I have difficulty and concern with this application for a number of reasons: (

a) The trial of the "E" action (referred to as the support action) is set to commence but four weeks hence; (

b) Historically, the "F" and "E" actions were ordered to be tried together (sequentially or otherwise). As of the first day of the trial, it was a matter of agreement between counsel that the "F" action would proceed with the trial of the "E" action to take place at a later date; (

c) If the actions had been tried at the same time, the current situation would not have arisen; (

d) In my view, the interests of the parties would be best served with an end to the litigation, referring here to the "F" and "E" actions. [ 10 ] The wife says she is impecunious, hence the assignment in bankruptcy. The husband, while not impecunious, maintains he is in difficult financial straits.

There is however no evidence showing his actual financial status and he remains employed as he was at the time of trial. [ 11 ] Regretfully, it seems the parties' legal expenses over the course of the past several years, and particularly in relation to the trial of the "F" action, have brought them to their current situations. [ 12 ] The conclusion I have reached in these difficult circumstances related to the set off issue is that it be deferred to the trial and completion of the "E" action. [ 13 ] I do not accept the submission of counsel for the husband, Mr.

Grieve, that there should be a stay of the interim order for support until completion of the trial of the "E" action by way of judgment. [ 14 ] In the circumstances here, I make no order for costs. “R.B. Harvey, J.” The Honourable Mr. Justice R.B. Harvey