R.B. v. M.J.B.

2025 BCSC 1538 R.B. v. M.J.B.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.B. v. M.J.B., 2025 BCSC 1538 Date: 20250811 Docket: E222610 Registry: Vancouver Between: R.B. also known as R.K. Claimant And M.J.B. Respondent Before: The Honourable Madam Justice Murray Reasons for Judgment re: Costs Counsel for the Claimant: J. Pyde The Respondent, appearing in person M.J.B. Place and Date of Hearing: Vancouver, B.C. April 30, 2025 Place and Date of Judgment: Vancouver, B.C. August 11, 2025

INTRODUCTION [1] The trial of this acrimonious family proceeding took place over 13 days in January, 2025. In Reasons for Judgment dated March 18, 2025 and indexed at 2025 BCSC 488, I rendered decisions on many issues, including division of property and debt, child support, and parenting times and responsibilities. The parties are now before me seeking costs. Both claim to be the substantially successful party. ISSUE 1: WHO IS ENTITLED TO COSTS? [2] Rule 16-1(7) of the Supreme Court Family Rules provides that costs of a family law case must be awarded to the successful party unless the court otherwise orders. The question is who is the successful party? [3] Justice Hardwick's comprehensive discussion regarding the application of this section in J.L.M. v. G.G.M., 2024 BCSC 1643 is helpful: [42] In S.A.M. v. J.A.M., 2017 BCSC 2348 at para. 7, Justice Bernard helpfully summarized the principles applicable to costs awards in family cases: (a) The costs of a family law case must be awarded to the successful party, unless the court otherwise orders (Rule 16-1(7)) of the Supreme Court Family Rules [Rules]; (b) The "successful party" is the party who has achieved substantial success at the trial/hearing (Fotheringham v. Fotheringham, 2001 BCSC 1321; Marquez v. Zapiola, 2014 BCCA 35); (c) The court's discretion to "order otherwise" must be exercised judicially, bearing in mind a

non-exhaustive list of factors that includes hardship, earning capacity, the purpose of the particular award, the conduct of the parties in relation to the litigation, and the importance of not upsetting the balance achieved by the court in relation to the substantive issues (Gold v. Gold (1993), 106 D.L.R. (4th) 452 (B.C.C.A.)); (d) The party who asks the court to "order otherwise" bears the onus to persuade the court why it should do so (S.D.W. v. C.W.W., 2006 BCSC 162); (e) Financial hardship, without more, is not a sufficient basis for the court to exercise its discretion to depart from the usual rule that successful parties are entitled to their costs (S.D.W. v. C.W.W., supra.; K.D.P. v. A.R.K aka R.K., 2012 BCSC 1025; Brown v. Kucher, 2016 BCSC 194); (f) Where an offer to settle a family case has been made, the court may award double costs for all or some of the steps taken after the date of delivery or service of the offer (Rule 11-1(5) of the Rules); (g) As a general rule, an award of double costs should be made against a party who did not accept an offer to settle that should, in all the circumstances, have been accepted (Hartshorne v. Hartshorne, 2011 BCCA 29); and, (h) In determining whether a double costs order should be made, the court may consider any factor the court considers appropriate, including whether the offer was one that ought reasonably to have been

accepted upon receipt or at any later date, the relationship between the offer and the judgment, and the relative financial circumstances of the parties (Rule 11-1(6) of the Rules). [43] Substantial success is to be measured objectively taking into account the matters in dispute, their weight or importance to the parties, and the parties' relative success or failure with respect to those matters: Fotheringham at para. 60. [44] At para. 46 of Fotheringham, Justice Bouck suggested that a judge considering whether to award costs 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. [45] Substantial success is to be "measured in broad terms" and the court should not finely parse issues: Stearman v. Powers, 2017 BCCA 165 at para. 65. [46] As the Court of Appeal noted in Marquez, the consideration should not be an overly complicated mathematical problem: [16] Success in the event has been interpreted as "substantial success": see Fotheringham v. Fotheringham, 2001 BCSC 1321, 13 C.P.C. (5th) 302, leave to appeal ref d 2002 BCCA 454. In Fotheringham, Mr. Justice Bouck described this standard as follows: [45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words "substantial success" are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when [looking] at all the disputed matters globally. [47] In Litt v. Gill, 2016 BCCA

288, Justice Garson commented on the unique problem costs pose in family law cases involving multiple issues, noting that a more flexible approach may be required in assessing the concept of "success" for the purposes of assessing costs: [53] At its most basic, the successful party is the plaintiff who establishes liability and obtains a remedy, or the defendant who obtains dismissal of the plaintiff's case: Loft v. Nat, 2014 BCCA 108 at para.

46. This general principle is more difficult to apply in the context of family cases, where there may be a panoply of claims advanced by each party, and divided success. There, a more flexible "substantial success" test may be more appropriate: see this Court's decisions in Harras v. Lhotka, 2016 BCCA 246 at para. 48 and Marquez v. Ziapola, 2014 BCCA 35 at para. 16. [48] In Reid v. Reid, 2017 BCCA 191, the Court of Appeal said: [9] We do not read Marquez as requiring that the Court, in determining "substantial success", undertake a mathematical comparison of the amount claimed to the amount awarded. Rather, the Court has broad discretion to take into account myriad considerations in assessing whether a party has been substantially successful. [4] Having regard to the law, there is no question that M.J.B. was the substantially successful party at trial. He was successful in all of the main applications: parenting time, parenting responsibilities, where the parties' son will attend school and where transitions take place. In addition, I found that M.J.B. did not assault his daughter P., an allegation made by R.K. which was central to her withholding parenting time, and I ordered that M.J.B. have two consecutive years of holiday parenting time to make up for holidays he missed due to this allegation. [5] As the substantially successful party, M.J.B. is entitled to costs. [6]

M.J.B. seeks double costs following his final offer made April 15, 2024. ISSUE 2: IS M.J.B. ENTITLED TO DOUBLE COSTS? [7] Rule 11-1(4) permits the court to consider an offer to settle when exercising its discretion in relation to costs. Rule 11-1(5) and (6) set out the options available to the court: Cost options 11-1(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. Considerations of court 11-1(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 [8] Our Court of Appeal set out the principles to guide courts in determining whether to order double costs in Hartshorne v. Hartshorne, 2011 BCCA 29: [25] An award of double costs is a punitive measure against a litigant for that party's failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place "to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept 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), 2 B.C.L.R. (3d) 201 (C.A.), Radke v. Parry, 2008 BCSC 1397). In this regard, 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. In addition 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), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref'd, [1988] 1 S.C.R. ix; · "[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect": Skidmore v. Blackmore (1995), 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, 2008 BCCA 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 strength or lack thereof of their cases at the commencement and throughout the course of the litigation", and by "discourag[ing] the continuance of doubtful cases or defences": Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16. . [27] The first factor - whether the offer to settle was one that ought reasonably to have been accepted - is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that the offer was open for acceptance, it would have been reasonable for it to have been accepted: Bailey v. Jang, 2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24; A.E. v. D.W.J. at para.

55. As was said in A.E. v. D.W.J., "The reasonableness of the plaintiff's decision not to accept the offer to settle must be assessed without reference to the court's decision" (para. 55). Instead, the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a "nuisance offer"), whether it could be easily evaluated, and whether some rationale for the offer was provided. We do not intend this to be a comprehensive list, nor do we suggest that each of these factors will necessarily be relevant in a given case. [Emphasis added.] [9] M.J.B. made a formal offer to settle on April 15, 2024. R.K. responded with three formal offers to settle -- December 5, 2024, January 4, 2025 and January 12, 2025 -- sent the evening before the trial commenced. Right up to the time of trial, virtually every issue in this high conflict family case was in dispute. As M.J.B. is the party entitled to costs, I will focus on his offer to settle. [10] M.J.B.'s offer to settle was comprehensive and detailed. It dealt with a multitude of issues. The primary matters in dispute involved parenting time and decision making. The offer to settle was not a "pick and choose" proposition; had to be accepted in its entirety. While the final judgment of this Court substantially "beats" M.J.B.'s settlement offer

respecting the main applications -- parenting time, holidays, parenting decisions, A.'s school, and meets others for example, spousal support, division of property -- R.K. had reasonable grounds to reject the offer based on the s. 211 report and her view of it. Accordingly, I am unable to conclude that R.K. was acting objectively unreasonably in failing to accept it. [11] I therefore decline to order double costs. ISSUE 3: WHAT SCALE OF COSTS SHOULD BE APPLIED? [12] The final question is the scale of costs to be applied. M.J.B. submits that costs should be at Scale C given the length of trial and the complexity of the issues. I disagree. Although it was a relatively lengthy, hard-fought trial, and particularly challenging for M.J.B. as a self represented litigant, the issues were not of more than ordinary difficulty.

CONCLUSION [13] M.J.B. is entitled to costs of the proceeding, including for all applications for which costs were awarded in the cause or costs were not addressed and the costs hearing, to be assessed as ordinary difficulty in accordance with the tariff set forth in the Supreme Court Family Rules. "The Honourable Madam Justice Murray"