BC family law cases can be very stressful and frustrating for both spouses. Each side wants to have their position endorsed by the courts. Often both sides have reasonable but differing positions that a judge must pick from to decide a BC family law case. After deciding a BC family case, the family law judge can decide to award costs to the successful party. These “normal” family law costs represent only portion of the actual legal fees paid by the winner to their lawyer.
However, sometimes one party acts so unreasonably that when they lose in court a judge has to decide if the winning spouse should be awarded “special costs” to help defray the legal costs they paid. Special Costs are designed to fully reimburse the winning sides’ legal costs paid.
Lorne MacLean, QC obtained special costs in Canada’s precedent setting Supreme Court Of Canada child custody case of Young v. Young. If you feel special costs are applicable to your BC family law case contact us to find out what your rights and responsibilities are in a BC family law special costs case.
When Are Special Costs Awarded In BC Family Cases?
Bobyn v. Bobyn is a July 2014 BC Supreme Court decision where a father acted inappropriately by failing to disclose his income and the fact he had returned to work in a family law support case. He was also obstructionist in disobeying court orders and his actions increased the legal costs for his wife who was seeking the fair amount of support. The courts are sensitive to people acting improperly and wasting the other spouse’s and the court’s time and money. In Bobyn the husband was sanctioned with an award of special costs to show his actions were deserving of rebuke.
COSTS
[108] Mrs. Bobyn has enjoyed complete success in this application. She entitled to her costs of not only this application, but of the application she was forced to bring in April of 2014 for an order that Mr. Bobyn provide financial disclosure.
[109] Pursuant to Rule 16-1 of the Supreme Court Family Rules, B.C. Reg. 169/2009, Mrs. Bobyn asks that these costs be assessed as special costs.
[110] Many of the authorities discussing special costs have been recently reviewed by Madam Justice Gropper in Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352.
[111] An award of special costs is intended to chastise a party for reprehensible, scandalous or outrageous conduct. By rebuking such conduct, the court punishes and deters bad behaviour and distances itself from it: Westsea at para. 37 and British Columbia v. Salt Spring Ventures Inc., 2014 BCSC 356 at para. 11.
[112] In Westsea, Gropper J. summarized the principles applicable to special costs at para. 73:
[73] I have undertaken a thorough review of the cases involving special costs. Having examined the authorities provided by both sides, it is apparent to me that the courts have been somewhat inconsistent in their determination of what amounts to reprehensible conduct and that those authorities must be reconciled. Based upon my review of the authorities, I have derived the following principles for awarding special costs:
a) the court must exercise restraint in awarding specials costs;
b) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order;
c) simply because the legal concept of “reprehensibility” captures different kinds of misconduct does not mean that all forms of misconduct are encompassed by this term;
d) reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court’s process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant;
e) special costs can be ordered against parties and non-parties alike; and
f) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a “bonus” or further compensation for that success.
[113] Applying these principles, I am persuaded that an award of special costs for both the April 2, 2014 application and the application before me is appropriate. These circumstances are exceptional.
[114] Mr. Bobyn’s conduct has been “reprehensible” as that term has been considered. He deliberately disobeyed court orders requiring him to disclose his change in employment and increase his child support. When legitimate and reasonable requests for financial information were made in furtherance of a legitimate review of his obligation, Mr. Bobyn was abusive and obstructionist. A court order was required to compel financial disclosure. It was not until he wisely obtained counsel that he complied, albeit quite late, with that order. Had Mr. Bobyn complied with prior court orders in 2009 and 2010, these applications would likely have been unnecessary.
[115] Mr. Bobyn’s motives in failing to comply with orders and obstructing legitimate attempts to obtain information were improper. Mr. Bobyn has demonstrated, through his own words, that his goal has been, and remains, to avoid or minimize his child support obligations when he can, for his own gain. Mrs. Bobyn has been prejudiced by this improper motivation – both emotionally and financially. Mr. Bobyn’s conduct is deserving of rebuke in the form of special costs.
Our Special Costs BC Family Law lawyers are experienced in dealing with the issue of Special Costs BC Family Law cases and can be reached at 1-877-602-9900.
