Hardy v. English

2026 BCSC 537 Hardy v. English IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hardy v. English, 2026 BCSC 537 Date: 20260327 Docket: E60937 Registry: Kamloops Between: Jamie Christine Frances Hardy Claimant And Daniel Robert English Respondent Before: The Honourable Justice G.P. Weatherill Reasons for Judgment on Costs Counsel for the Claimant: K. McKay Counsel for the Respondent: G.L. Canniff Written Submissions of the Respondent Received: Kamloops, B.C. March 12, 2026 Written Submissions of the Claimant Received: Kamloops, B.C. March 20, 2026 Place and Date of Judgment: Kamloops, B.C. March 27, 2026 Introduction [1] On February 13, 2026, I delivered oral reasons on an interim application brought by the respondent seeking various orders dealing with the parties' respective incomes for the purposes of determining spousal and child support for the years 2023 to the present, and on an ongoing basis (the "Application"). The interim orders I made resulted in not only the respondent being the substantially successful party, but according to him, they were more favourable to him than the offer dated March 12, 2025, that his counsel mailed to the claimant (the "Offer") which the claimant did not respond to. [2] The respondent now seeks: a) Ordinary costs of the proceeding; b) Double costs from March 12, 2025 to February 13, 2026; and c) Elevated costs of $5,000 reflecting what he argues was the claimant's unreasonable conduct that necessitated the Application. [3] While the claimant does not dispute that the respondent was the successful party and is entitled to costs of the Application, she disputes that he is entitled to double costs or elevated costs because: a) The Offer was made approximately six months before the claimant filed her notice of application in September 2025, at a time when the proceeding was dormant and did not fall withing the scope of R. 11-1 of the Supreme Court Family Rules [Rules] which governs formal offers to settle and whose purpose is to encourage settlements during active litigation; b) The Offer did not contain the mandatory cost-reservation clause required by R. 11-1(1)(c)(iii); c) At the first hearing of the respondent's application on September 19, 2025, the respondent's counsel stated that the Offer was open for acceptance to the September 2025 hearing date and was therefore not open for acceptance afterwards. Once withdrawn, the Offer was legally ineffective and cannot be used to support any form of increased costs award; and d) The respondent did not identify any conduct of the claimant that meets the strict test for special costs, without which an order of what the respondent calls "elevated costs" cannot be justified. Background [4] The parties began cohabiting in 2009, had two children together, currently aged 15 and 13, and separated in January 2019. [5] In 2022, the parties agreed to mediate the issues between them and, following a two-day mediation, agreed to the terms of a settlement that were documented in a memorandum of agreement ("MOA"). The terms of the MOA relevant to the Application are: a) The parties would equally share all parenting responsibilities of the children. b) Parenting would be on a four-day on/four-day off rotation. c) Child support would be based on the claimant having an income of $47,193 and the respondent having an income of $125,000. d) Commencing October 1, 2022, the respondent would pay the claimant child support of $1500 per month which was the set-off amount in accordance with the Federal Child Support Guidelines, SOR/97-175. e) The respondent's child support and s. 7 expenses arrears were agreed at $6,000 which the respondent would pay in two tranches of $3,000, one on October 15, 2022, and the other on December 15, 2022. f) Section 7 expenses would be paid in proportion to the parties' incomes. As of the MOA, the claimant would pay 34% and the respondent would pay 66%. g) The respondent would pay the claimant spousal support of $500 per month, and spousal support would not be reviewed until September 2026 "unless there is a significant change in circumstances affecting one of the parties". The review would be with respect to both entitlement and quantum. h) For so long as the children were entitled to receive child support the parties would exchange "copies of their respective income tax returns for the previous year, including all attachments, not later than June 15 of each year commencing in 2023" and exchange copies of their respective Notices of Assessments immediately upon receipt. [6] The respondent paid child and spousal support in accordance with the MOA until November 2024, when he unilaterally reduced both payments to a total of $1,500 per month. He did not break down the payments between spousal and child support. [7] In March 2025, he again unilaterally reduced support payments to $1,000 per month and then to $750 per month in December 2025. [8] Contrary to the terms of the MOA, and notwithstanding repeated requests from the respondent's counsel, the claimant failed to produce her income tax information until the December 2025 timeframe. [9] The Application was filed on September 2, 2025, because the respondent concluded that he had been overpaying support payments, wanted them reviewed in accordance with the terms of the MOA and because of the claimant's earlier failure to provide him with financial disclosure as mandated by the MOA. [10] After two prior court appearances, I heard the Application on February 13, 2026. I concluded and ordered that: a) The claimant had failed to provide the financial disclosure required by both the MOA and the Family Law Act, S.B.C. 2011, c. 25, and that failure triggered the Application; b) The support payments in the MOA were based on the claimant having an annual income of $47,193. After the MOA, she changed jobs earning much more income and her failure to provide financial disclosure was because she did not want the respondent to know that her income had significantly increased; c) The claimant should be fined $1,000 for that failure; d) The claimant's income will be imputed at $77,000 for 2023; $60,000 for 2024; $45,000 for 2025 and ongoing years until further court order or agreement; e) The respondent's income will be imputed at $94,418.05 for 2023; $85,975 for 2024; and $90,000 for 2025 and ongoing years until further court order or agreement; f) The terms of the MOA respecting spousal support will continue with the respondent paying the claimant $500 per month from November 2024 to September 2026, which is the earliest time that spousal support can be reviewed; g) The parties will determine child support and spousal support payment obligations based on their respective imputed incomes; h) Child support payments are to take priority over spousal support payments for the purpose of income tax deductibility. Once the respondent's past child support payment obligation has been calculated, the amount of spousal support the respondent has paid can been determined; i) There are no outstanding or arrears of s. 7 expenses payable by either party. Proportionate sharing of s. 7 expenses will commence March 1, 2026, in accordance with their respective imputed incomes; j) The parties must exchange their respective T1 tax returns and notices of assessments by June 15 of each year, with the calculation of child support and s. 7 expense obligations adjusted accordingly; and k) So long as the claimant is attending university, her annual income shall be imputed at the greater of $45,000 or her actual income. [11] On that background, the respondent seeks costs in excess of the usual Appendix B costs. Is the Respondent entitled to Double Costs [12] The respondent seeks double costs from the date of the Offer to the date of my order. [13] Rule 11-1 of the Rules governs offers to settle, the relevant sections of which are: (1) In this rule, "offer to settle" means (c) an offer to settle made after July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule read on the date of the offer to settle, or made under this rule, that (iii) contains the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding." . . . (4) The court may consider an offer to settle when exercising the court's discretion in relation to costs. (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 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 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 to settle, costs to which the party would have been entitled had the offer not been made; (d) if the party who made the offer obtained a judgment as favourable as, or more favourable than, the terms of the offer, award to the party the party's costs 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 to settle. (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 delivered or 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. [14] The Offer was made on a without prejudice basis and provided that, going forward, the respondent would pay the clamant $1,000 per month in child support and $500 per month in spousal support. [15] For the following reasons, I am not persuaded that the respondent is entitled to double costs. [16] First, the Offer was sent directly to Ms. Hardy at a time when she was unrepresented and there is no evidence to suggest that she knew or understood the nature and effect of an offer to settle. In my view, this is an appropriate factor for consideration under R. 11-1(6). [17] The Offer did not contain the requisite language required by R. 11-1(1)(c)(iii) for it to qualify as an "offer to settle" allowing the court to exercise its discretion in relation to costs. Therefore, the costs options that would have been open for consideration under R. 11-1(4), including an award of double costs, are not available to the respondent. Failure to include the wording required by R.11-1(1)(c)(iii) is fatal to the respondent's application for double costs. Is the Respondent entitled to Elevated or Special Costs [18] The respondent argues that the claimant's conduct throughout has unreasonably inflated the time and expense required to have the Application heard. In particular, he points to the claimant's failure to respond to repeated demands for financial disclosure. He seeks a lump sum award of $5,000 over and above costs he would otherwise be entitled to. [19] The claimant counters that it is the respondent who is the cause of the Application being delayed and who should be sanctioned in costs. She cites these examples: a) The respondent caused two adjournments of the Application due to deficiencies in his materials; b) The respondent failed to comply with service rules; c) The respondent abandoned relief during submissions; and d) The respondent failed to participate in mediation that the court ordered during the September 2025 court appearance; [20] There is no debate that special costs are an extraordinary remedy reserved only for reprehensible, scandalous, or clearly improper conduct such as dishonesty, bad faith, intentional misrepresentation or abuse of the court's process. [21] The respondent bases his application for elevated and/or special costs on the claimant's delayed financial disclosure and my comments during the hearing that her increased income and her failure to adequately explain the delay led to an adverse inference that it was because she did not want the respondent to know about her changed financial circumstances since the MOA. [22] In my view, delayed financial disclosure, without more, does not meet the level of misconduct required to justify an order for elevated and/or special costs. Neither counsel referred me to any case where such costs were awarded against a party who failed to make financial disclosure on time. Indeed, this Court recently refused to award special costs in a case where the claimant was accused of significant material non-disclosure and allegedly misleading the court: Son v. Kim, 2024 BCSC 1454. [23] Further, I addressed the claimant's disclosure issue through a $1,000 financial penalty, which I consider to be the appropriate and proportional remedy in the circumstances for her failure to provide timely financial disclosure. Even in the case where a party's conduct is found to rise to the level that would ordinarily lead to special costs, the risk of double counting fines and costs awards for such conduct can lead to the court declining to order such costs: T.A.O. v D.J.M, 2021 BCSC 1724 at para. 81. Summary [24] Costs are grounded in fairness and proportionality and compensate only for work reasonably required on issues where a party was successful. [25] The Application was an interim application, and the respondent was the successful party. As such and unless the court otherwise orders, he is entitled to Appendix B costs for the Application. A party who seeks to have the court "otherwise order" bears the onus of persuading the court why it should do so: S.A.M. v. J.A.M., 2017 BCSC 2348. [26] In my view, there is nothing particularly unusual about the Application that would warrant departing from the rule that costs follow the event and that those costs should be assessed as Appendix B costs. [27] Double costs are a remedy provided for by the Rules, which rely on an offer properly being made using the language in R. 11-1(1)(c)(iii). They are also subject to the court's consideration of the factors in R. 11-1(6). On consideration of the relevant Rules, the respondent has not persuaded me that he is entitled to such costs. [28] Special costs are reserved for cases of exceptional circumstances where there has been reprehensible or egregious behavior or where there is evidence of such things as improper motive, abuse of the court's process and/or misleading the court such that it is deserving of rebuke. I am not persuaded that this case rises to the level that an order of special costs should be ordered. [29] While I agree that the claimant acted unreasonably in failing to follow the terms and the spirit of the MOA and the Family Law Act by failing to disclose the mandated financial information, I have already fined her $1,000 for that indiscretion. Awarding elevated and/or special costs would be to punish her twice which I do not consider appropriate. [30] The respondent concedes that he is not entitled to and is not pursing costs for the January 5, 2026, court attendance. [31] In the result, the respondent is entitled to costs of the Application (save for the court attendance on January 5, 2026, which he is not pursuing) assessed as Appendix B costs. "G.P. Weatherill J."