Lorne MacLean QC leads BC’s largest multiple location family law firm. The firm now has 18 lawyers operating in downtown Vancouver, South Surrey, West Kelowna and Fort St John. The firm was recently ranked as Vancouver’s top family law firm. We handle complex and challenging family law matters and help people resolve matters favourably and promptly. If you are looking to hire the Best* Vancouver Family Lawyer contact us now. Here is what one delighted client just said about Lorne MacLean, QC’s efforts in resolving his massive case:
Lorne has done an outstanding job with his work on my case which was extremely complex. He is accurate and quick, always up to date, his tenacity makes me wish never to have him as an opponent, and at the same time extremely fair looking at both sides of the picture. At the same time he has a great sense of humor. When things have to happen quickly AND well this is your man! He even hand delivered documents in person to my home on several occasions! No doubt top in his field and I would recommend him and his team to anyone.
We are often involved in difficult cases where we must enforce proper behaviour by obstreperous opposing litigants. We do lifestyle analyses on cases where hidden income and assets are involved and will ensure you get your fair share, will obtain conduct orders to enforce your rights and seek special costs to sanction outrageous behaviour by the other side.
Special Costs Help Stop Stupidity and Non-Disclosure
Hu v Dickson is a recent case where a judge ordered an award of costs far above the norm for improper and misleading behaviours of a husband. His attempts to intimidate were sanctioned by the court. This case gives a great summary of when financial penalties will be visited on a recalcitrant family law litigant. You want to hire the best* Vancouver family lawyer to ensure no games are played on your family law case. Here’s how special costs work in a BC family law case:
Legal Principles
[46] Special costs are awarded where a party’s litigation conduct can be characterized as “reprehensible”. In this context the word reprehensible encompasses both scandalous and outrageous conduct and also milder forms of misconduct deserving of reproof or rebuke: Garcia, para. 17. This does not mean that all forms of misconduct justify a special costs order – rather, the misconduct must be such as to be deserving of reproof or rebuke: Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352 at paras. 32 and 73.
[47] The purpose for this high level of costs is punitive and intended to express the court’s disapproval of the party’s conduct. It is not necessary that all aspects of a party’s conduct in the litigation be reprehensible in order to make an award of special costs that applies to the entire action: Bradshaw v. Stenner, 2012 BCSC 237 at para. 9, leave to appeal ref’d 2012 BCCA 481. However, pursuant to Rule 16‑1(14) of the Supreme Court Family Rules, the court has the discretion to award costs that relate to only certain aspects of a proceeding and may do so where it would be disproportionate to award special costs of the entire proceeding: Gichuru, para. 91.
[48] The court must exercise restraint in awarding special costs and as such the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order: Westsea, para. 73.
[49] In Kim v. Hong, 2013 BCSC 2248, Justice Griffin quoted extensively from the judgment of Justice Williams in Schwabe v. Dr. Lisinski, 2005 BCSC 1284, where he summarized a number of cases in an effort to discern the kinds of conduct that had been characterized as reprehensible and thus warranting an award of special costs. Justice Griffin also categorized the conduct that had been found to justify an award of special costs in a number of family cases.
From her reasons, it is apparent that the kinds of conduct that warrant an award of special costs include the following:
- acting with an improper motive, such as to intimidate, exhaust or financially drain the other party in the hopes that they will give up or soften their position in the litigation;
- dissipating and/or not disclosing assets;
- abusing the court’s process by, among other things, failing to disclose documents, delaying in disclosing documents, failing to respond to reasonable requests, causing unnecessary interlocutory applications, and breaching the Rules of Court in a manner that prejudices the other party;
- misleading the court, through outright fabrications or through evasive and/or equivocal responses; and
- disobeying a court order.
Court’s Analysis
[50] In this case, I have no hesitation in finding that the respondent engaged in conduct falling within each of these categories.
- contemptuous conduct consisted of the dissipation of assets that were in issue in this case
- failed to disclose financial documents in a timely manner.
- He was casual, if not reckless, about the accuracy of his sworn Form 8 Financial Statements.
- he admitted to lying in his examination for discovery
- his conduct was directed at intimidating the claimant into abandoning her claims.
The Judge then considered what parts of the action should the award for special costs relate to noting the following cases
[67] For the foregoing reasons, an award of special costs is appropriate in this case. However, it would be disproportionate, in my view, to award special costs for the entirety of the proceeding. As already noted, the court has the discretion to award costs that relate to some particular application, step, or matter in a proceeding, and may do so where it would be disproportionate to award special costs of the entire proceeding.
[68] In A.S.P. v. N.N.J., 2013 BCSC 2377, the court awarded special costs against the husband, in a family law proceeding, but found that it would be disproportionate to award special costs for the entire proceeding taking into account the financial circumstances of the husband and the fact that the matter was a family proceeding where many issues were hard fought (paras. 66-67).
[69] In Romfo v. 1216393 Ontario Inc., 2007 BCSC 1772, leave to appeal ref’d 2008 BCCA 101, the court made a partial award of special costs for certain aspects of the proceeding only on the basis that to award special costs of the entire proceeding would be disproportionate (paras. 10-11).
[70] In Gichuru the Court of Appeal cited A.S.P. and Romfo for the proposition that a judge can make a partial award if it would be disproportionate to award special costs for the entire proceeding (para. 91).
[71] This case concerned a relatively short marriage between parties, each of whom were financially independent prior to the relationship. The respondent’s conduct in opposing the claimant’s claim to an equal division of the home and the SWISS shares and her claim for ongoing spousal support was reasonable, even though not ultimately completely successful. It is likely, in the circumstances, that the claimant would have had to pursue these claims through to trial irrespective of the respondent’s conduct. Further, unlike the parties in Kim, these parties are not wealthy and some consideration of the respondent’s ability to pay is appropriate.
You need the Best* Vancouver Family Lawyer to focus on getting your case resolved efficiently and fairly. Our lawyers will help you accomplish this. Call us across BC toll free at 1-877-602-9900.
