Davis v. Davis

2014 BCSC 260 Davis v. Davis IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Davis v. Davis, 2014 BCSC 260 Date: 20140219 Docket: E039091 Registry: New Westminster Between: Amanda Jennifer Davis aka Amanda Jennifer Williams Claimant And: Stephen Michael Davis Respondent Before: The Honourable Mr. Justice Grauer Reasons for Judgment on Costs Counsel for the Claimant: Shawn Bobb Appearing on his own behalf: Stephen Michael Davis Written Submissions filed: December 20, 2013, January 3 and January 6, 2014 Place and Date of Judgment: Vancouver, B.C. February 19, 2014 [1] This action proceeded to trial before me in New Westminster from October 7-11, 2013. I delivered my Reasons for Judgment, indexed as 2013 BCSC 2187, on November 29, 2013. I delivered Supplementary Reasons for Judgment on December 6, 2013, indexed as 2013 BCSC 2239. No order has been entered. [2] In my original Reasons for Judgment, I directed that the parties should bear their own costs. Counsel for the claimant then quite properly brought to my attention that he wished to make submissions concerning costs, particularly in relation to Offers to Settle made pursuant to Rule 11-1 of the Supreme Court Family Rules. In those circumstances, in my Supplementary Reasons, I revoked my order concerning costs, and directed the parties to file written submissions on the question. Those submissions were filed as directed, and my Reasons concerning costs follow. [3] The claimant's position is, first, that she was substantially successful in her claim, and that costs of the proceeding should follow that event. [4] Second, Mrs. Davis submits that she should be awarded double costs of the trial on the basis of a series of offers to settle. The first was delivered September 23, 2013, and concerned guardianship and parenting time. Three offers were delivered on October 1, 2013, concerning, respectively, CPP division, imputing Mrs. Davis's income at $25,000/year with a proportionate share of section 7 expenses, and defining special and extraordinary expenses. There was a further offer relating to parenting time on October 2, 2013, and another offer on that date regarding asset division and spousal support based on two different scenarios. [5] Third, Mrs. Davis points to difficulties caused by the respondent, who was self-represented at trial and remain so, in disputing matters unnecessarily, and in taking irresponsible positions after trial in relation to aspects of my order. These allegedly irresponsible positions included refusing to pay the spousal support I ordered because I had not specified a start date, and refusing to cooperate with Mrs. Davis as ordered in obtaining passports for the children, because an order had not yet been entered. The first problem I dealt with in my Supplementary Reasons for Judgment by making explicit what I had thought was implicit in my judgment, that spousal support was to start immediately, and continue on the first day of each month thereafter. [6] I am unable to accept the claimant's submissions concerning costs of the proceeding and double costs of the trial. I take a different view of success at the trial. Both parties took what I consider to have been unreasonable positions and I am not convinced that my original impression, that success was evenly divided, was wrong. [7] By way of example, the claimant wished to alter parenting time by eliminating Mr. Davis's Friday night access. I concluded that this would be contrary to the best interests of the children, and took into account only the interests of Mrs. Davis. I maintained the parenting schedule that was already in place. Moreover, a good deal of time was taken up by evidence from Mrs. Davis tending to suggest that Mr. Davis was a less than fit parent, yet that was not a position she was prepared to take. The evidence was, accordingly, unnecessary. [8] It is true that Mrs. Davis's offers to settle would have maintained the parenting schedule that was in place, and which I continued. But Mr. Davis did not ask for anything else. It was Mrs. Davis who sought to depart from the terms she had offered. Had she not done so, they would have been no issue between them concerning the parenting schedule. [9] In addition, the offers would have reserved for Mrs. Davis the default decision-making power with respect to all parenting responsibilities. I maintained Mrs. Davis's position for the most part, but assigned the default decision-making power to Mr. Davis in relation to two important aspects: counselling for the children, and recreational and sports activities for their son. Obviously, he could not have achieved this by accepting Mrs. Davis's offers. [10] Mrs. Davis then argues that she achieved success on what was perhaps the most contentious issue at trial, being the division of assets. It is true that the apportionment I ordered was more favourable to her than what she had offered to accept beforehand. She forgets, however, that that was only half the issue. The parties had few assets and many debts. The real issue was dealing with the debts, and the extent to which they were joint liabilities or not, with an apportionment of assets that took this into account. Viewed in this way, success, as I see it, was at best evenly divided. Indeed the position taken at trial by Mrs. Davis would, if accepted, have involved the court in the unseemly act of preferring her parents as creditors over other creditors. That was unsound in law and ought not to have been advanced, yet Mr. Davis was in no position to counter the argument, given his lack of legal expertise. [11] When I take the offers to settle as a whole, I am unable to say either that the claimant did better at trial than what she had offered to accept, or that, in all of the circumstances, the respondent ought reasonably to have accepted them. [12] I turn next to consider Mrs. Davis's position that Mr. Davis's post-trial actions have been unreasonable, leading to additional expense. I note the context to which I referred in my initial Reasons for Judgment of real communication difficulties between the parties, and hypersensitivity. This has not abated. [13] Mr. Davis's failure to pay spousal support for the month of December in the absence of that date being specified was, in the context of my Reasons for Judgment as a whole, unjustifiable. [14] Mrs. Davis complains, in addition, that Mr. Davis has failed to cooperate fully in her attempts to obtain passports for their children, notwithstanding that I specifically directed him to cooperate with Mrs. Davis this matter. Mrs. Davis relies on advice she received from Passport Canada about Mr. Davis not agreeing with the release of the passports because there is no final order. Mr. Davis maintains that this was not correct, but even on the information he has provided, I not satisfied that he has cooperated to the extent required of him. I remind him that an order speaks from the time of pronouncement, not from the time of entry. [15] Finally, the parties have been unable to agree on the appropriate form of order to reflect my Reasons for Judgment and Supplementary Reasons for Judgment. Both have submitted drafts. [16] The claimant's draft is correct as far as it goes. The respondent has sought to include additional matters that were not part of my order. But neither reflects my findings concerning the parties' liabilities, as discussed in paragraphs 53 through 56 of my Reasons for Judgment. [17] The claimant should prepare a further draft in the same terms as her existing draft, but adding the appropriate reference to liabilities. It may be submitted for entry without the respondent's signature, and shall be submitted to me for review. [18] The claimant's claim for the costs of the proceeding is dismissed. The claimant's claim for double costs of the trial is dismissed. The parties shall bear their own costs of the proceeding including the trial. With respect to post-trial matters, I find that the steps that the parties have had to take have been driven principally by unreasonable behaviour on the part of the respondent, and I award costs to the claimant for those steps in the amount of $2,500.00 inclusive of disbursements, but not including applicable taxes. "GRAUER, J."