As top rated Vancouver, Surrey, Kelowna and Fort St. John family lawyers we routinely advise our clients at the start of their child custody and access case to be open and honest with us about all of the strengths and weaknesses of their family law case. The need for full disclosure from a family client at the very start of the case is all the more critical in cases involving child custody and guardianship. The earlier a case can be fairly settled or dealt with by the courts- if the parties cannot reach an agreement- the better for the child and the parties. We try to help our clients take a “bite of reality sandwich” right at the start of their case. If we can settle a case early, then stress is eliminated and legal fees are reduced. Further, a second set of legal costs being court costs that can be paid by the unsuccessful party to the successful party may be avoided. We have 4 offices across BC and can be reached toll free at 1 877 602 9900. We also act in Calgary, Alberta.
Sadly, it is human nature for both parties at the start of a case to believe that they are assured of success and in many cases they expect the court will give them justice and that the court will also lecture their opposing spouse about the other parent on their deficiencies or other issues. We tell our clients it is a very rare child custody case where one parent is clearly superior and the other clearly deficient or inferior. In most cases we deal with the parents are both good parents but there is a difference of opinion over what parenting plan would be best for their child. Even the experts are divided over what parenting regime works best for children. Further, the latest evidence from the child psychology experts over what child parenting plan works best is succinctly stated as “it depends on the child”.
The British Columbia Court system encourages the use of offers to settle right from the start of a court case. We explain to our clients that the purpose of an offer to settle is not to demand a settlement that represents a perfect result for them. Rather, a realistic settlement offer that takes into account the uncertainties family law litigation is required. Both parties take risks in handing the decision over in a child custody case to a judge who is brilliant, well-intentioned but at the end of the day a stranger.
The purpose of making a realistic offer to settle early on in the proceedings is twofold:
- to settle matters quickly and cheaply as well as fairly
- by making a realistic offer, a party believes they can match or beat in court, they can put themselves in a position of obtaining court costs including double court costs of a proceeding. For example, double court cost of a 5 day trial might total in the area of $30,000. A realistic offer puts pressure on the opposing party to consider whether to accept the offer or face an award of court costs against them.
- The use of the offer to settle discourages unreasonable claims by parties and encourages them to assess the strengths and weaknesses of their claim early on in the proceedings rather than blindly proceeding to court and trial.
This weeks decision in K.D.P. v. A.R.K. aka R.K., 2012 bcsc 1025 reiterates that there is no longer any issue that the costs rules in family law cases apply to child custody and guardianship and access decisions as well as all other aspects of family law. We can do no better than to quote the reasons of the learned trial judge where he summarizes the law as of July 2012 in British Columbia:
COSTS IN CHILD CUSTODY CASES
[13] The Court of Appeal in S.J.C. v. S.-J.C.A., 2010 BCCA 31 (“S.J.C.”)put an end to the long running debate in this Court as to whether or not costs should be awarded in cases in which the primary issue is custody. At para. 62, Prowse J.A. for the Court said:
While it is apparent there are different approaches to the issue of costs in matters of custody and access in the B.C. Supreme Court, this Court has previously stated that the usual rule that “costs follow the event” (that is, that the “successful” party is entitled to costs) applies in matrimonial proceedings, subject to a discretion to refuse costs to the successful party in certain circumstances. The authority for that proposition is Gold, in which this Court sat with five judges in order to determine that question. Although Gold was decided in the context of a dispute concerning the division of assets, it has been applied by this Court in several cases where issues concerning the custody of children were involved, albeit in the context of costs of the appeal. See, for example, Karpodinis v. Kantas, 2006 BCCA 400, Yassin v. Loubani, 2007 BCCA 102, 67 B.C.L.R. (4th), and Falvai v. Falvai, 2009 BCCA 387, [2009] 10 W.W.R. 453. (As noted in S.D.W., the Gold approach to costs in matrimonial matters also appears to be in keeping with the approach in other provinces, including Alberta and Manitoba.) In my view, it is not open to this division of the Court to re-open the debate and come to a different conclusion than that expressed in the prior decisions of this Court.
[14] Cases in this Court such as Morrison v. Morrison, 2001 BCSC 909, P.E.P. v. D.W.P., 2004 BCSC 1590, D.E.C v. J.A.C, 2005 BCSC 190, Fillis v. Fillis, 2006 BCSC 1032, Chera v. Chera, 2008 BCSC 1640, and Hosseini v. Kazemi, 2011 BCSC 1559, which suggest that a special rule applies in regard to costs in custody cases can no longer be considered good law and should not be followed.
[15] As noted in S.J.C. the governing authority for costs in all family law cases is Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.) (“Gold”). In Gold the Court held that costs should follow the event unless the court otherwise ordered.
[16] In Gold, the Court at para. 20 provided guidance as to when the court should order otherwise:
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.
[17] While financial hardship is one factor to consider, that factor is insufficient on its own to depart from the usual rule that costs follow the event: S.D.W. v. C.W.W., 2006 BCSC 162 at para. 29; Robinson v. Lakner (1998), 159 D.L.R. (4th) 191 (B.C.C.A.).
[18] In cases where one party has achieved substantial success, it is open to the Court to nonetheless award only a portion of the successful party’s costs: Cohen v. Cohen (1995), 15 R.F.L. (4th) 84 (B.C.C.A.), Newstone v. Newstone (1994), 91 B.C.L.R. (2d) 246 (C.A.), Rolls v. Rolls (1996), 20 R.F.L. (4th) 232 (B.C.C.A.) and B.R.T. v. J.L.T.T., 2011 BCSC 440 at para. 11.
[19] The fact that the unsuccessful party was acting in good faith and on reasonably held beliefs concerning the best interests of a child is not a reason to deprive the substantially successful party of costs. As noted by Gropper J. in Molero Colina v. Chan, 2011 BCSC 700 at para. 28:
The courts assume that parties come to court with a genuine belief that their position is right. That is not just in family cases, but in every case. The “genuine belief theory” is not a theory of costs.
Our lawyers are fluent in Mandarin, Cantonese, Punjabi, Hindi and Farsi. Call us early on in your family law child custody case so we can talk frankly about getting the child custody issues you face dealt with as quickly and fairly as possible.
