J.S.P. v. J.H.S.

2016 BCSC 2485 J.S.P. v. J.H.S. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.S.P. v. J.H.S., 2016 BCSC 2485 Date: 20161215 Docket: E123045 Registry: Vancouver Between: J.S.P. Claimant And J.H.S. Respondent Before: The Honourable Madam Justice Gray Oral Ruling on Costs In Chambers Counsel for the Claimant: P.M. Daykin, Q.C. Counsel for the Respondent: L.A. Kahn, Q.C. Place and Date of Hearing: Vancouver, B.C. December 15, 2016 Place and Date of Ruling: Vancouver, B.C. December 15, 2016 [1] THE COURT: This is a matrimonial proceeding. Both the claimant ex‑wife and mother ("Mother") and the respondent ex‑husband and father ("Father") say that they were substantially successful at trial, and each of them seeks costs. I am told that the costs on the tariff would be in the range of about $46,000. I expect that sum is a fraction of the costs that both sides actually incurred. This matter went to a 10‑day trial. [2] I gave reasons for judgment in two parts. The first set of reasons for judgment were oral reasons for judgment on parenting issues ("Parenting RFJ"). They are indexed at 2014 BCSC 2447. My written reasons for judgment on the remaining issues, which were predominantly financial, are indexed at 2015 BCSC 1239. Some of the issues went to the Court of Appeal, and the resulting reasons for judgment are indexed at 2016 BCCA 344. [3] Essentially, the Mother says that she won on both the parenting issues and the major issue of whether the Father's interest in the trust which owned the former matrimonial home was a family asset, and that therefore she was substantially successful. The Father says that neither one of them was really successful on the parenting issues, but that the Father won overall on the financial issues and therefore was substantially successful. Mr. Kahn, Q.C. argued on the Father's behalf that the Mother wanted at least $1.5 million, and pursuant to the decision of the Court of Appeal she is entitled to only $482,000 less something in respect of past and ongoing child support. [4] I am going to give a brief summary of the issues. [5] The former matrimonial home was owned by a trust ("Home Trust"). The Father had lived in the home before the parties were married and started living there together. The Mother's position at trial was that the Father's interest in the Home Trust was equal to the value of the home, being about $3.7 million, and that it should be shared equally, by which she would get $1.85 million. I understood it was the Mother's alternate submission that the Father might be entitled to a reapportionment of ten percent, being a split of 60 percent to the Father and 40 percent to the Mother. The Father's position at trial was that his interest in this Home Trust was not a family asset and the Mother was not entitled to anything regarding the Home Trust or the former matrimonial home. [6] I concluded that the Father's interest in the Home Trust was a family asset worth nearly the value of the home and that it should be redistributed to the Father, so that he was entitled to 70 percent and the Mother was entitled to 30 percent. On that basis the Mother was entitled to $1.11 million. [7] There is a significant age difference between the parties, and that played a role in the issues relating to spousal and child support. The Mother's position was that Father should not receive any spousal support. The Father's position was that he should receive lump sum spousal support in the range of $1.3 million to $2.6 million. [8] I concluded that the Father was entitled to spousal support from the Mother, essentially regarding the period commencing when he was likely to stop working, and that the appropriate lump sum amount was $300,000. The Court of Appeal did not agree with that figure and provided a revised formula for determining the lump sum spousal support. The parties have agreed that the amount payable for the lump sum of spousal support is $627,566. [9] The Mother's position was that the Father was not entitled to anything for child support. The Father's position was that there should be lump-sum child support of $550,000. I made the order that the Mother should pay the Father lump sum child support of $190,000. The Court of Appeal did not agree with a lump-sum child support payment. The amount that the Mother will owe the Father for child support is to be recalculated on the basis of certain assumptions and payable on a periodic basis rather than a lump‑sum basis. [10] Another way to summarize the financial issues is that the Mother claimed that she should receive $1.85 million, with the Father keeping his interest in the Home Trust, and that there would be no ongoing child support. The Father's position was that he should keep the interest in the Home Trust and the Mother should get nothing. He claimed spousal and child support only if the Mother was to receive something regarding the Home Trust. So his position about spousal and child support were in the alternative that he failed on the characterization of his interest in the Home Trust. [11] As a result of my decision, the Mother would be entitled to about $620,000 from the Father. That has been reduced by the Court of Appeal to essentially $482,000, although the Mother is to also pay the Father something for ongoing child support. The Father is keeping the interest in the Home Trust. [12] The issues concerning the parenting arrangements are more difficult to summarize. I am going to read some quotes from paras. 7-10, 55-58, 73 and 86 of the Parenting RFJ: [7] The parties disagree on the parenting schedule for the children, although they agree about a great deal. The parties agree that there should be some form of shared parenting and that there should be a gradual shift to a schedule by which both children spend equal time with each parent. The parties disagree about three things regarding the schedule: first, whether what I will term the "Ultimate Schedule" should be an alternating week schedule or what I term a "2/2/5/5" schedule; second, what should be the manner and pace of the shift to the Ultimate Schedule; and third, how to handle the school break at Christmastime. [8] The complication in this case is the Daughter's reluctance to stay overnight with the Father. She is willing to spend time with him, but has been refusing to stay overnight at his home. The parties agree that neither party will be required to compel the Daughter to stay overnight with themselves or the other parent if the Daughter refuses to do so. [9] The difference in the parties' proposals about the Christmas schedule relate to whether the children should be away from the Mother on Christmas Eve without the Mother's further agreement. The Mother celebrates German Christmas on December 24. The Father proposes that each parent have the option, once every three years but not including 2014, to travel with the children for the period including December 24 and 25. The Mother wants the children to always spend December 24 with her. [10] The parties also disagree about whether the children should continue to see Dr. M, who is a child psychologist who has been treating the children since shortly after the separation. [55] No one has been able to determine just why the Daughter has trouble staying overnight at the Father's. Dr. M has been asking the Daughter for a long time and has not been able to get any answer. Dr. M testified that it is not unusual for a child of the age of the Daughter to be unable to articulate her concerns, and that the Daughter might not be able to do so until she reaches adolescence. The Son speculated, in his meeting with me, that his sister might have some unhappy memories about arguments between the parents at what was the family home and is now the Father's home. The Father thinks the Daughter will grow out of her reluctance, but that it also relates to the Daughter's difficulty in amusing herself and putting herself to sleep. The Mother thinks that the Father's conduct when angry is part of the problem. [56] The fact that the Daughter generally refuses to stay overnight with the Father has been difficult for the whole family. Everyone worries about it. The Father feels hurt by the Daughter's refusal to stay with him. The Mother is limited in her ability to pursue her own activities because she must always be available for the Daughter. The children miss each other when they are apart, such as for Thursday and Friday mornings when the Son is with the Father and the Daughter with the Mother. [57] It is not necessary for me to try to attribute or apportion blame to one or both of the parents for the Daughter's reluctance to stay with her Father. I suspect that the Daughter's reluctance arises at least in part from her particular personality, in the context of the stress of her parents' separation and the personality of the other family members. It may also relate to angry behaviour by the parties, and the Father's animated conversational style. [58] I am satisfied that both parents genuinely want both children to spend roughly half time with each parent, and that both parents are distressed by the Daughter's reluctance to stay overnight with the Father. I am satisfied that both parents have tried very hard to assist the Daughter to become comfortable in staying overnight with the Father. No parent is perfect, and both parents have done or omitted to do some things which, particularly with the benefit of hindsight, may have made the situation worse. My task is to act in the children's best interests in designing the parenting arrangements for the future. [73] How the Daughter reacts to the schedule changes will have a major effect on how the changes are implemented. Both parents are loving parents and both agree that the Daughter should not be forced to stay overnight against her wishes. The schedule set by the court may provide some relief and guidance, because the Daughter will likely understand that the schedule was decided by the court rather than by either parent or by her, but that her views were important. [86] I am concerned that the Daughter may feel loyalty to Dr. M and be "stuck", in the sense that she feels that she should tell Dr. M the same things she has told Dr. M for many years. The Son reported to me that his sister said that she did not see the point in seeing Dr. M. The Daughter has actually seen Dr. M only five times in the last eight months. Dr. M does not work in the summers. [13] The Mother's position as set out in her opening statement was that the daughter should gradually move to a position of the same schedule as the son, which was three and a half days with each parent, with the exchanges I think on Wednesdays and Saturdays. By the time of the conclusion of the trial, the Mother's position was that the ultimate schedule should be alternating 2/2/5/5-day periods. The Father's position was that the ultimate schedule should be alternating weeks. I concluded that the ultimate schedule should be alternating 2/2/5/5-day periods. [14] The Mother's suggestion about gradual movement to the ultimate schedule was a period that would take ten months. The Father's proposal would take seven months. What I ordered was about 12 months. [15] On the issue of Christmas Eve, as I have said the Mother's position was that the children should always be with her on December 24. The Father's position was that it should be optional one year out of three. I concluded that for the moment it should always be that the Mother will have the children on December 24. [16] The Mother's position was the children should be free to see Dr. M. The Father's position was that if counselling is necessary, it should be a fresh start with someone new. I concluded that the children should be free to see Dr. M. However, as I read out from paragraph 86, the daughter had actually seen Dr. M only five times in the preceding eight months. [17] There is no disagreement about the law. I quote as follows from my reasons for judgment in James v. James, 2016 BCSC 1538, paragraphs 7 through 9: [7] Supreme Court Family Rule [SCFR] 16‑1(7) provides that costs of a family law case must be awarded to the successful party unless the Court orders otherwise. [8] The Court of Appeal discussed when the Court should make an order other than to the successful party in Gold v. Gold (1993), 1993 CanLII 1248 (BC CA), 82 B.C.L.R. (2d) 180, at paras. 19 and 20, as follows: [19] It is my view that the rule which should govern the award of costs in matrimonial proceedings should be the same as in other civil litigation, namely, that costs should follow the event unless the Court otherwise orders as specified in Rule 57: Meneghetti v. Meneghetti (1979), 1979 CanLII 711 (BC SC), 17 B.C.L.R. 200 (B.C.S.C.) at p. 201. [20] The question, then, is: When should the Court order otherwise? With respect, when the court should order otherwise is a matter of discretion, to be exercised judicially by the trial judge, as directed by the Rules of Court. To lay down any strict guidelines or even to attempt to give exhaustive examples is not, I think, helpful because the facts and issues in each family law case vary so greatly. Factors such as hardship, earning capacity, the purpose of the particular award, the conduct of the parties in the litigation, and the importance of not upsetting the balance achieved by the award itself are all matters which a trial judge, quite properly, may be asked to take into account. Assessing the importance of such factors within the context of a particular case, however, is a matter best left for determination by the trial judge. [9] Matrimonial proceedings often involve numerous issues. Where there are multiple issues, the Court must consider whether one party has been "substantially" successful. This is discussed more fully in paras. 46 and 60 of Fotheringham v. Fotheringham, 2001 BCSC 1321 (CanLII), (leave to appeal ref'd, 2002 BCCA 454 (CanLII) [Fotheringham]), as follows: [46] Based on the above interpretation of Rules 57(9), 57(15) and Gold, a decision to award or not award costs after a trial might follow a four step inquiry. 1. First, by focusing on the "matters in dispute" at the trial. These may or may not include "issues" explicitly mentioned in the pleadings. 2. Second, by assessing the weight or importance of those "matters" to the parties. 3. Third, by doing a global determination with respect to all the matters in dispute and determining which party "substantially succeeded," overall and therefore won the event. 4. Fourth, where one party "substantially succeeded," a consideration of whether there are reasons to "otherwise order" that the winning party be deprived of his or her costs and each side then bear their own costs. [60] 1. Under Rule 57(9), a party who substantially succeeds on the matters in dispute at trial is entitled to his or her costs unless otherwise ordered. 2. Substantial success is measured objectively taking into account all the matters in dispute, their weight or importance to the parties and the parties' relative success or failure with respect to those matters. 3. As a rule of thumb, substantial success occurs when the prevailing party succeeds on 75% of the matters in dispute looked at globally. 4. This case is not an instance where costs should be awarded based upon the parties' success or failure on particular issues: Rule 57(15). The claims and defences are not unique. They would probably involve an undesirable costly and prolonged dissection of "issues and subissues." Any result would present a difficult task for the registrar on the taxation, given the nature of Appendix B. [18] The fourth step in the inquiry suggested by the Fotheringham case provides that where one party substantially succeeded, the court could consider whether there are reasons to "otherwise order" that the winning party be deprived of his or her costs and each side then bear their own costs. That was not an issue in this case. This is not a case where there was an argument, for example, that one party had acted in contempt of court and as a result should be deprived of costs. So I must consider the first three factors from the Fotheringham analysis. [19] It is always difficult to characterize what are the matters in dispute. As I have said, the parties through their counsel have characterized them differently. Depending on the way it is characterized, each party claims substantial success. [20] The matters in dispute were both financial and parenting. The financial issue was really what, if anything, should the Father pay to the Mother for the interest in the Home Trust, and what if anything should the Mother pay to the Father for child support and spousal support, if and only if the Father was required to pay something to the Mother in respect of the Home Trust. [21] Mr. Daykin, QC, on behalf of the Mother sought to characterize the issue as really being whether the Father's interest in the Home trust was a family asset. He argued that she was substantially successful on that point. [22] I do not accept the argument that the main issue was characterization of the Father's interest in the Home Trust because, in my view, the parties were really trying to resolve who should get what. As is apparent from the summary that I have given, there was ultimately a question of who should pay who what amount of money. My original order would have required the Father to pay the Mother $620,000. That has now been reduced to $482,000, less whatever the Mother must pay the Father for ongoing child support. [23] On the question of the parenting the dominant issues were the ultimate schedule and the pace of the implementation of equal‑time parenting. However, both parties agreed that the ultimate schedule should be equal time parenting. [24] I then go to the second factor, which is what is the weight or importance of those matters to the parties? In this case the issues about parenting were unusual because the parties were so very close in their positions on what should be done about the parenting. The issues really arose from the daughter's reluctance to stay with the Father. The parents were not able to reach an agreement. There was a report from Dr. A, which was in evidence. I also heard the evidence of the counsellor Dr. M and I interviewed the children privately. [25] I said in paragraph 73 of the Parenting RFJ: The schedule set by the court may provide some relief and guidance, because the Daughter will likely understand that the schedule was decided by the court rather than by either parent or by her, but that her views were important. [26] So parenting was a very important matter for both parents, but in terms of what was in dispute, in my view it was not a significant issue, because the positions of the parties were very close. In my view, the Mother was more successful on the parenting issues, but I would not give that significant weight for the purposes of assessing costs. [27] On the financial matters, the parties were significantly apart, and it was an important issue to both parties. The Father was more successful financially. On my calculations, he was not as much as 75 percent successful on the financial issues. I say that because, if you consider that the Mother wanted to receive $1.5 million in respect of her claim to the interest in the Home Trust, she has been held to be entitled to $482,000 less something for child support. On my calculations that is 32 percent, which of course is closer to one‑third than one‑quarter. In the excerpt from Fotheringham that I have referred to, substantial success would ordinarily require something in the range of 75 percent. [28] So even if I consider that the Mother was 100 percent successful on the parenting issues, she was at most 32 percent successful on financial matters. Using those calculations on the basis that the parenting and financial issues were equally significant, she was about 65 percent successful overall, which is less than 75 percent successful. However, as I have said I would give less weight to the success on the parenting issues because the parties were not far apart. The nature of the parenting dispute was really that the parties needed a decision imposed by a third party. As a result, the Mother was somewhat less than 65 percent successful overall. [29] In all the circumstances I am not persuaded that either parent was substantially successful at trial or with the revisions ordered by the Court of Appeal. So I dismiss the cross‑applications, and I order that each party bear his or her own costs. "Gray J."