The issues at trial were relocation, imputation of income, retroactive and prospective spousal and child support. The father was substantially successful at the trial.
Per Rule 16-1(7) of the Supreme Court Family Rules, costs of a family law case must be awarded to the successful party unless otherwise ordered.
“Successful” means “substantially successful”: Gold v. Gold (1993), 82 B.C.L.R. (2fd) 180 at paras. 18-22
There is a four-part inquiry to determine if a litigant is substantially successful: Fotheringham v. Fotheringham, 2001 BCSC 1321, leave to appeal ref’d 2002 BCCA 454 at para. 46.
The Respondent father sought special costs against the Claimant mother for reprehensible conduct during the court proceedings. After the evidence had been presented at trial, the Claimant changed her position on relocating with the parties’ child, the central issue in the case, and sought relief similar to the status quo. The Respondent father had formulated his case and elicited evidence throughout the trial on the basis that he was opposing the Claimant’s relocation application.
The Claimant disobeyed court orders. She made misleading statements in affidavits sworn in support of pre-trial applications. The Claimant failed to provide timely and accurate financial disclosure. She embellished, exaggerated, and lied in her testimony. She was evasive under cross-examination and gave long-winded answers that had little relationship to the questions posed. Her credibility on practically all matters of financial importance was repeatedly impugned at trial.
Notwithstanding misconduct from the Respondent in the course of proceedings, he was awarded special costs:
[75] As I observed in M.S.G. v. S.K.G., 2014 BCSC 1344 at para. 141, family law lends itself to highly-charged emotions in an environment of anger and distrust. The non-legal issues often loom large and, in the minds of the parties, are indistinguishable from, and are often times of greater importance than, the disputes that matter from a legal standpoint. It is not uncommon for the parties’ personal feelings to manifest in unfortunate conduct outside of the courtroom, and in a tendency towards exaggeration, juvenile behaviour and unreliable recounting of events at trial. For these reasons, it is my view that a reasonable dose of forgiveness should be afforded to family law litigants in evaluating their alleged misbehaviour in the litigation. Here, however, the claimant’s transgressions far exceeded those bounds.
[76] She knowingly and repeatedly concocted and exaggerated evidence for improper purposes, including trying to manipulate and deceive this Court to achieve goals in her own self-interest. She disobeyed more than one Court order, was found to be in contempt of this Court and consistently failed or refused to make proper financial disclosure. In short, the claimant confounded the litigation process at practically every step and demonstrated a pattern of concealment and distortion. Hers is precisely the kind of misconduct that is readily characterized as reprehensible within the meaning contemplated by the Court of Appeal in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R (3d) 242 (C.A.), and its judicial lineage: See generally, Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352; Tomic v. Tough, 2013 BCCA 355.
Brennan J. Clarkson has helped clients with family law and estate law cases since 2008. He practices in Port Moody, British Columbia at Clarkson Law Corporation.
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