Townshend v. Abbott

2022 BCSC 57 Townshend v. Abbott

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Townshend v. Abbott, 2022 BCSC 57 Date: 20220114 Docket: E194186 Registry: Victoria Between: Jordan Lewis Townshend Claimant And: Nicole Marie Abbott Respondent Before: The Honourable Mr. Justice Punnett Reasons for Judgment (Costs) Counsel for the Claimant: V. Hemminger Counsel for the Respondent: J. Horton Written Submissions of Claimant: September 15, 2021 Written Submissions of Respondent: September 27, 2021 Place and Date of Judgment: Victoria, B.C. January 14, 2022 Introduction [1] The claimant seeks costs and double costs in this family proceeding in which the claimant applied in a summary trial to enforce a separation agreement between the parties and for an order that the respondent was statute barred from setting it aside. Reasons for Judgment are indexed as 2021 BCSC 1600. Background [2] The parties commenced cohabitation in January 2006 and separated June 15, 2012. They had purchased the former family property in January of 2010 on which they constructed a small home. They both contributed sweat equity and paid for trades and subcontractors to assist with the construction. After their separation in June 2012, the claimant resided and worked in Ontario until 2016. The respondent remained in the home. [3] At trial the respondent argued that the Separation Agreement could not be enforced because the limitation period

had been postponed and the Separation Agreement was unfair and a sham. I concluded: [71] I am satisfied the Separation Agreement was not a sham. The parties complied with it until the respondent failed to move from the home and transfer it to the claimant. When she decided the property was worth more than noted in the Separation Agreement, she sought to vary it to obtain additional funds. In both her pleadings and her affidavits, she remained consistent in the position that she was seeking a variation or setting aside of the Separation Agreement. She did not mention it was a sham or open to be changed until after the claimant raised the limitation issue. ... [92] The issue of how the Separation Agreement came into effect is irrelevant given the finding the respondent accepted it was an agreement and sought to set it aside: not on the basis it was a sham or fabrication but because it was unfair. For the reasons above, I find it was a valid separation agreement and the limitation period was not postponed for the reason it was a sham or subject to a condition it was subject to change. As a result, the limitation period has not been postponed and, pursuant to s. 198(3) of the FLA, the respondent is out of time. [4] After reasons for judgment were issued on August 16, 2021, the parties submitted written submissions on costs. [5] The successful claimant seeks costs from the inception

of the claim including double costs from December 19, 2019, or alternatively from April 30, 2020. The respondent submits each should bear their own costs and, in the alternative, if costs are awarded, they should not be double costs. [6] Each party submits they did everything they could to avoid proceeding to trial. Position of the Claimant [7] The claimant submits he succeeded in this proceeding and seeks his costs from the time of filing of the Notice of Family Claim. He also seek double costs because of offers made. Counsel summarized the two offers: 1. December 19, 2019 ...: This offer was made directly to Ms. Abbott. He offers to be paid $114,000 (there is a typo in the letter), but the terms make it clear that the amount is $114,000. She is then able to keep the house as long as she refinances it. This offer was not accepted.

2. April 7, 2020 ... This offer was made to Ms. Abbott. Here, he offers that he will refinance the property and she would vacate, similarly to the Order awarded by the court, but that he would also pay to her an additional $12,500. This offer made it clear that Mr. Townshend reserved the right to bring the offer to the attention of the court in reference to costs. This offer was not accepted. Position of the Respondent [8] The respondent accepts that costs are usually awarded to the successful party but submits that in the circumstances of this matter costs should not be awarded against her. Given that double costs is a discretionary award, and based on the factors referred to in Rule 11-1(5), the respondent also submits that double costs should not be awarded. [9] The respondent says it was reasonable for her not to accept any of the offers based on her lack of legal advice at the time of the offers, her offers to mediate, her offers to settle, her current financial circumstances, her alleged brain injury from a motor vehicle accident and her PTSD. She submits that these factors amount to "special circumstances", and to award costs or double costs to the claimant would unreasonably penalize her. Legal Framework [10] Rule 16-1(7) of the Supreme Court Family Rules, B.C. Reg. 169/2009 provides: (7) Subject to subrule (9), costs of a family law case must be awarded to the

successful party unless the court otherwise orders. [11] "Success" means substantial success, meaning where the prevailing party succeeds on 75% or more of the matters in dispute, assessed on a global basis. Substantial success is determined by comparing the positions taken at trial against the trial outcome: see M.S.G. v. S.K.R., 2015 BCSC 913, at para. 6. [12] Rule 11-1 address offers to settle: 11-1(4) The court may consider an offer to settle when exercising the court's discretion in relation to costs. 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 (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 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. [13] In Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.), the Court of Appeal stated "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..." (para. 19). The Court then said: 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. [14] In Richardson v. Richardson, 2012 BCSC 1187, the respondent sought special costs or, in the alternative double costs because of an Offer to Settle. The respondent was substantially successful and the Offer to Settle was more generous than the trial award. The claimant sought an order that each should bear their own costs and that because of financial hardship she could not pay the respondent's costs. After a review of several authorities, the court found that "double costs would upset the balance achieved by the award and unnecessarily penalize the claimant" (para. 19). The respondent was however entitled to his ordinary taxable costs. [15] The onus is on the respondent to persuade the court it should depart from the usual rule that costs follow the event (Purewal v. Purewal, 2007 BCSC 901, para.

4. In Purewal, Dorgan J also noted that where family assets are modest a cost award could upset the reapportionment ordered (para. 12). Justice Dorgan ordered each to pay their own costs in part because the conduct of the plaintiff in ignoring orders to pay spousal support weighed against a cost award of any sort (para. 13). Such conduct is not an issue in this proceeding. Discussion [16] The claimant succeeded and is, unless otherwise ordered, entitled to his costs from the date of filing the Notice of Family Claim. [17] Regarding double costs, the offer of December 19, 2019 was open for consideration for less than five days at a time when the respondent was unrepresented and before the limitation period issue was raised. Given the time of year and its short period for acceptance it was not unreasonable for the respondent not to accept this offer. It does not attract an order for double costs. [18] At trial, the claimant obtained a result favourable to the offer of April 7, 2020, as no payment was required to be made to the respondent. The issue then is whether the court should grant an order of double costs from that date based on the circumstances at that time and whether or not the respondent acted reasonably in not accepting the offer. In April 2020, the respondent remained unrepresented though by that point she had had ample time to retain counsel but had not done

so. [19] The summary trial was lengthy as the respondent was granted considerable latitude on cross-examination based on the alleged relevance of anticipated evidence, relevance that was not ultimately established. As a result, the claimant's application on the narrow issue of the limitation period was prolonged unnecessarily. The claimant was completely successful in his application. [20] The claimant's financial circumstances are better than those of the respondent as is his ability to support himself and improve his circumstances. He has benefited from the increase in the value of the former family home after the separation of the parties. The respondent however had the benefit of residing in the former family home from 2012 onwards at low rental while the claimant paid other expenses of the property. [21] It will be difficult for the respondent to pay costs and double costs would impose a significant hardship on her. In addition, given the amounts involved double costs would upset the outcome of the trial and would penalize the respondent. I therefore decline to award double costs. [22] The claimant however is entitled to his costs from the date of filing of the Notice of Family Claim on September 25, 2019. While such costs will be a significant obligation for the respondent to meet, given the protracted nature of the litigation generally, the offers of the claimant to resolve matters without further litigation, the conduct by the respondent of the summary trial, and the outcome of the litigation it is appropriate for the claimant to have his costs. [23] The application for double costs is dismissed. The claimant shall have his costs at scale B. "The Honourable Mr. Justice Punnett"