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MacLean Law Offices

Vancouver Family Appeal Costs Lawyers handle Appeals for both the party appealing and the person who won at the trial below. How does the court deal with Vancouver family law appeals that are sketchy and where the person appealing may be unable to pay the costs of losing the family law appeal? Roughly 1 in 4  to 1 in 3 of family law appeals are successful. This means many family law appeals fail.

Today, Lorne MacLean, QC founder of MacLean Law’s team of Vancouver Family Appeal Costs Lawyers explains security for costs applications in the Appeal context. This costs strategy can help winnow out weak family law appeal cases and protect the winning party being out of pocket on legal fees. As we will see below the Court of Appeal will look at 4 factors: the appealing party’s finances, how strong their appeal is, how quickly the trial winner brought on the application for security and how easy costs could be recovered from the losing appellant if the appeal fails.

Lorne MacLean handles complex custody and high net worth family financial dispute Appeals and was winning counsel on Young v Young, Canada’s most famous child custody case where he won sole custody, substantial support, 100% reapportionment of the family home and special costs. Contact our Vancouver Family Appeal Costs Lawyers across BC and in Calgary.

Vancouver Family Appeal Costs Lawyers 1 877 602 9900 

Our Vancouver Family Appeal Costs Lawyers  like how the BC Court of Appeal in Hammond clearly explained the test:

Security for Costs of the Appeal

[13]         I turn next to the application for security for costs of the appeal.

[14]         In supplementary submissions Mr. and Mrs. Hammond have submitted a draft bill of costs of the appeal. Ms. Hammond has not disputed its reasonableness. The amount claimed is $9,121.

[15]         The jurisdiction to order security for costs of an appeal is found in s. 24(1) of the Act, which provides:

A justice may order that an appellant pay to or deposit with the registrar security for costs in an amount and in a form determined by the justice.

[16]         In Lu v. Mao, 2006 BCCA 560 (Chambers) at para. 6, Ryan J.A. set out the relevant consideration:

In determining whether security for costs should be ordered, the ultimate question to be answered is whether the order would be in the interests of justice. In this regard, Madam Justice Rowles in Ferguson v. Ferstay (2000), 81 B.C.L.R. (3d) 90 at para. 7; 2000 BCCA 592, (in Chambers) identified the following as relevant considerations:

(1) appellant’s financial means;

(2) the merits of the appeal;

(3) the timeliness of the application; and

(4) whether the costs will be readily recoverable.

[17]         Importantly, the burden is on the appellant to show it is in the interests of justice that the respondent’s request for security for costs of an appeal should be denied: Creative Salmon Company Ltd. v. Staniford, 2007 BCCA 285at para. 9.

Vancouver Family Appeal Costs Lawyers 1 877 602 9900 

The stronger the appeal the less likely security for costs will be ordered.

The Merits of the Appeal

[29]         As to the merits of the appeal, Ms. Hammond pleads unjust enrichment in circumstances where such a claim could potentially arise. However her appeal rests on overturning the chambers judge’s factual findings with respect to her motives for bringing the claim. The chambers judge found as a fact that Ms. Hammond commenced the counterclaim “for an ulterior and improper purpose – to get revenge against [the respondents] for wrongs she feels she has suffered”: para. 51. Factual findings are subject to a highly deferential standard of appellate review: Housen v. Nikolaisen, 2002 SCC 33 at para. 10. Ms. Hammond’s email correspondence with the Hammonds demonstrates a basis in fact that could be said to support the finding by the chambers judge that her claim was brought for an improper motive. While I cannot say the appeal is without merit, in my view it is a weak appeal.

Vancouver Family Appeal Costs Lawyers 1 877 602 9900 

Our Vancouver Family Appeal Costs Lawyers note the Appeal Court balanced all 4 factors in deciding the case based on the law and it held that partial security (50%) for costs should be ordered:

[30]         The circumstances of the appellant are an important consideration, but it may be appropriate to balance those circumstances with prejudice, as Justice Esson stated in Bird Semple Fyfe Ireland W.S. v. Dixon, 1999 BCCA 333 at para. 13:

In considering an application of this kind the court must have regard to the circumstances of the debtor. In some cases, that would lead to no security being ordered and in others to partial security being ordered (Cadinha v. Chemar Corp. (1995), 17 B.C.L.R. (3d) 347 (B.C.C.A. [In Chambers]). As Lambert J.A. said in Cadinha v. Chemar Corp. at pp. 352-3:

…the question of whether security should be required depends upon very much the same balancing of prejudice to both parties as is required in a case where execution is stayed on the basis of the posting of security in the normal case of defendants living in British Columbia.

[31]         In my view consideration of the Lu v. Mao factors, leads to the conclusion that it is in the interests of justice Ms. Hammond pay security for partial costs of the appeal. Mr. and Mrs. Hammond are unlikely to recover their costs if they succeed in the appeal. I recognize that an order for security for costs may preclude Ms. Hammond from pursuing her appeal. Although I cannot say the appeal is without any merit, the judge found as a fact that Ms. Hammond did not have a legitimate legal claim but rather was attempting to exact revenge on her former husband and his parents. In these circumstances, I would balance these relevant factors by ordering Ms. Hammond to pay security for partial costs of the appeal. The amount set out in the draft bill of costs is $9,121. I order that Ms. Hammond pay into court the sum of $4,750 as security for costs of the appeal.

Call our Vancouver Family Appeal Costs Lawyers today toll-free at 1 877 602 9900