R.S.G. v. S.G.

2010 BCSC 316 R.S.G. v. S.G.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.S.G. v. S.G., 2010 BCSC 316 Date: 20100312 Docket: E071653 Registry: Vancouver Between: R. S. G. Plaintiff And S. G. also known as S. P. Defendant Before: The Honourable Madam Justice Wedge Supplementary Reasons for Judgment Counsel for the Plaintiff: R. Henderson Appearing on her own behalf, by teleconference: S. G. Place and Date of Trial: Vancouver, B.C. March 30, 31, 2009 April 1, 2, and 3, 2009 Place and Date of Judgment: Vancouver, B.C. March 12, 2010 [1] These are supplementary reasons for judgment to my decision given orally on April 7, 2009. Shortly after the conclusion of the trial in this matrimonial litigation, which principally concerned the schedule governing access by the parties to their two young children, I provided oral reasons to the parties. However, a number of issues remained outstanding. They included the claim for divorce, the defendant's application for a name change consequent upon the divorce order, and costs. [2] All of the viva voce evidence necessary to obtain the divorce was led at trial, but the marriage certificate was not filed because it was not available at the time. Accordingly, the claim for divorce and name change was adjourned generally. [3] On the issue of costs, I advised the parties that failing agreement on the matter, they were at liberty to file written submissions. [4] The

parties did file written submissions on the issue of costs, but did not take any steps to obtain the order for divorce. It was my understanding that the parties would obtain a date through the Registry to have the outstanding matters dealt with at the same time. I anticipated giving oral reasons on the issue of costs at that time. [5] However, I have now received correspondence from counsel for Mr. G. advising that Ms. G. has failed or neglected to take the requisite steps necessary to proceed with the divorce. As Ms. G. was the party who claimed for divorce, she was required to prepare and file the necessary documentation which, according to Mr. G., has not been done. Mr. G. now asks that the Court grant the divorce without the need for a further attendance in court or amendment to the pleadings. [6] Counsel also advised that the parties were awaiting my decision on the issue of costs. The parties had apparently understood that I would provide written reasons on the issue. [7] I will address these outstanding issues in turn. The Claim for Divorce and Name Change [8] So long as the marriage certificate has now been filed, I am prepared to grant the order for divorce as requested by counsel for Mr. G. Ms. G.'s application for a name change will also be granted unless she advises that she is no longer seeking it. Costs [9] Mr. G. argued that he was the successful party in the

litigation, and sought double costs pursuant to Rule 37B of the Rules of Court on the basis of a written offer of settlement delivered to Ms. G. approximately two weeks before trial. [10] Ms. G. argued that success was divided and, accordingly, the parties should bear their own costs. [11] Mr. G.'s offer to settle was based on the written recommendations of Dr. Rebecca England contained in her s. 15 Custody and Access Report dated March 1, 2009. The offer provided that Mr. G. was prepared to settle the matters of custody, guardianship and access of the children on the following terms: · That the parties share joint custody and guardianship of the children; · That the sharing of the children's time between the parties be in accordance with Dr. England's report (that is, alternating weeks with the transition occurring on a day during the week); · That the other recommendations made by Dr. England concerning counselling and communications as between the parties be adopted and included as part of the access regime. [12] Ms. G. did not accept the offer. It was her view that the best interests of her children would not be served by that access regime. She sought a regime with more frequent transitions and more time with her. [13] The matter proceeded to trial on March 30, 2009, for five days. [14] In the result, I accepted the recommendation of Dr. England that access be based on a

schedule of alternating weeks, and that the transition occur on a week day after school in order to minimize contact between the parties. Historically, the transition from one parent to the other had been fraught with difficulty. [15] However, Dr. England's recommendations concerning access required some fine tuning, including identification of the day of the week the transition ought to occur. Further, Dr. England's report did not address all of the issues between the parties concerning custody and access. [16] This has been a relationship marred by high conflict. The dynamic that had developed between the parties with respect to the parenting of these two young children was difficult and complex. Much of the difficulty was rooted in the relationship between the parties during the marriage and following its breakdown. So severe was the dysfunction that I took the unusual step of speaking directly to the parties about my concerns arising from the evidence I had heard. Both parents had contributed to the turf war in which the children were caught. I reviewed with them some of the uncontested evidence and identified the areas in which I concluded each was particularly at fault. I warned them that if they did not find a means of co-parenting the children, the eventual result could be an order for sole custody and neither party could be confident of a favourable outcome. [17] There

were numerous issues requiring resolution that were not addressed in Dr. England's report. My rulings addressed the following additional issues: · The sharing of work-related child care costs incurred as a result of the rotating 7-day access schedule; · Holiday access (i.e. Christmas, Easter, Thanksgiving, Spring Break etc.) and summer vacation access; · Child support; · Section 7 expenses; · The claiming of the children as dependants for taxation purposes; · The identification of a counsellor to assist the parties with their communication and parenting issues and particularization of the specific issues requiring attention in counselling; · The identification of a counsellor for the children; · The shared cost of the counselling. [18] The offer to settle did not address most of these issues. [19] Further, there is now a new regime concerning double costs governing all proceedings including matrimonial proceedings. Under Rule 37B, double costs do not necessarily follow the making and bettering of a formal offer to settle. There is now significant judicial discretion in the awarding of double costs: S.J.C. v. S.-J.C.A., 2009 BCSC 78. Factors that may be considered include (but are by no means limited to) the relationship between the terms of settlement offered and the final judgment of the court, and the relative financial circumstances of the parties. [20] In all of the

circumstances, I am not prepared to award double costs to Mr. G. [21] The more difficult issue is the question of ordinary costs. [22] According to Rule 57(9), costs must "follow the event unless the court otherwise orders". As noted by Macaulay J. in S.J.C., inherent in Rule 57(9) is discretion not to order costs to the successful party if there is a principled basis for that exercise of discretion. In support of that observation, Macaulay J. cited the comment of our Court of Appeal in Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 at para. 20: [W]hen 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. [23] As also noted by Macaulay J. at para. 8, there has been considerable debate in

this court, and some division of opinion, about the principles governing any departure in child custody cases from the general rule that costs follow the event. The law is not settled on the question of whether some child custody cases fall outside the general rule regarding costs or within recognized exceptions as described in Gold. The ongoing debate attests to the fact that the issue of costs litigation involving child custody and access is a difficult one. [24] In the present case, the parties had the advantage of Dr. England's recommendations, which were published well in advance of the trial. The report was thoughtful, thorough and impartial. Dr. England's perceptions were borne out by the evidence in the trial. Her recommendations were eminently sensible in the circumstances. Mr. G. was prepared to accept those recommendations; Ms. G. was not. At least half of the trial time was taken up with the issues addressed by Dr. England. [25] Pursuant to Rule 57(15), the Court may award costs that "relate to some particular issue or part of the proceeding". Weekly access was a discreet issue on which Mr. G. was successful. There is no principled basis on which to deny Mr. G. his costs on that issue. [26] For the foregoing reasons, I have concluded that Mr. G. is entitled to 50% of his ordinary costs at Scale B. The Honourable Madam Justice C. A. Wedge