A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Special Costs: spouses behaving badly

Special costs can be awarded pursuant to Rule 16-1(1)(b) of the Supreme Court Family Rules.

They are awarded in rare cases where conduct by a party during a court proceeding has been “reprehensible.” Special costs are above regular costs, or double costs.

As set out in Oldaker v. The Owners, Strata Plan VR 1008, 2010 BCCA 241:

The well known formulation of the test for special costs set out by Lambert J.A. in Garcia v. Crestwood Forest Industries Ltd. … at para. 17.

[T]he single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”. As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms in its conduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

As this passage makes clear, the primary descriptor of the standard for a special costs award is “reprehensible”. The other terminology: “scandalous or outrageous”, “reproof or rebuke”, “reprehensible or unconsciounable” simply indicates that “reprehensible” is to be interpreted broadly ….

An applicaiton for special costs was recently dealt with in a family law case: Oliver v. Oliver 2012 BCSC 2102. In that case, Madam Justice Fenlon commented:

An award of special costs is discretionary. Such an award is based on a party’s conduct in the proceedings, and I emphasize that. It does not relate to Mr. Oliver’s conduct during the marriage or leading to the breakdown of the marriage, or in his relationship with Mrs. Oliver.

It is important to note that Justice Fenlon specifically comments that conduct prior to the court proceedings (litigation) is not relevant to an award of special costs if your spouse was, in your opinion, reprehensible, scandalous or outrageous during the time you were married. In the Oliver case, special costs were not awarded.

I thought it would be interesting to look at some court decisions where special costs have been awarded in family law. Some examples are:

  • “At the trial, the issues turned on the credibility of the parties. Kelleher J. found that the defendant’s claims – that the plaintiff had taken some Gucci watches, several gold bars and the wedding jewellery from the parties’ safety deposit box and that the parties separated on a date different than that claimed by the plaintiff – were unbelievable.” Kooner v. Kooner;
  • The respondent husband failed to disclose assets, Cunha v. da Cunha;
  • “The defendant has pursued a hopeless claim which was bound to fail. He has not pursued the several appeals he filed but has returned to this Court on the same issue seeking to have a different judge over turn what has clearly been determined by a previous judge.” Muller v. Muller;
  • the defendant, inter alia, attempted to mislead the court at trial regarding his income, refused to swear an oath upon giving testimony, disobeyed court orders, and refused to answer questions under oath on examination for discovery. Bains v. Bains>;
  • “I regret to have to say in such circumstances that, on the whole, the defendants and those members of their family who gave testimony in support of their positions upon the material issues, in my view, gave such testimony in a deliberate attempt to mislead the court. In particular, I am satisfied they were engaged in a scheme, however misguided, to defeat the claims of the plaintiff in relation to her interest in the matrimonial home.” Young v. Young.

    Deliberate attempts to mislead the court will result in special costs… which reminds me of the 1997 divorce movie “Liar Liar”

    • Live on CFAX…Real Parenting Interview

    This Saturday (March 30, 2013) I will be interviewed on Real Parenting by Shirley Broback.

    The interview will be focused on the Family Law Act provisions regarding parenting and the inclusion of children’s input into parenting arrangements.

    Host of Real Parenting, Shirley Broback and proud mom of two little ones!

    Shirley Broback is the host of Real Parenting and the proud mom of two little ones!

    Check out the interview by tuning in: C-FAX 1070 Saturday at 12-1pm PT!

    Divorce Cat: sometimes you just need a joke

    People have started posting family law related articles and news on my Facebook wall (keep them coming!).

    Recently my friend Meghan Russ (who works as a legal assistant at the family law firm of Cochard Johnson in Edmonton) sent me something that made me smile:

    Divorce Cat

    Divorce Cat

    Family Law Act: spouse defined

    Much has been written about the new Family Law Act‘s definition of the term spouse. Lots of people ask me about the term as well. How long do you have to live together to be a spouse? When does a relationship begin? When does a relationship end?

    Here is what the statute has to say:

    Spouses and relationships between spouses

    3 (1) A person is a spouse for the purposes of this Act if the person

    (a) is married to another person, or
    (b) has lived with another person in a marriage-like relationship, and
    (i) has done so for a continuous period of at least 2 years, or
    (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

    (2) A spouse includes a former spouse.

    (3) A relationship between spouses begins on the earlier of the following:
    (a) the date on which they began to live together in a marriage-like relationship;
    (b) the date of their marriage.

    (4) For the purposes of this Act,
    (a) spouses may be separated despite continuing to live in the same residence, and
    (b) the court may consider, as evidence of separation,
    (i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
    (ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

    Basically if you have lived with someone in a “marriage-like relationship” for a continuous period of two years you are a spouse of that person.

    No wedding, no problem... you still have an equal opportunity to annoy your spouse... Photo Credit: C.P.Storm

    No wedding, no problem… you still have an equal opportunity to annoy your spouse…
    Photo Credit: C.P.Storm

    Additionally, if you have a child with a person (but have not lived together for two years) you are a spouse except for the purposes of property division and pension division.

    What is a marriage like relationship? There is no exact definition. However, if you are anything more than platonic roommates you should consider getting legal advice about the status of your relationship – there have been many court cases looking at different factors of couple’s living arrangements to try an determine if they are “marriage like”.

    Family Law Act: article in Victoria News

    Earlier this week Daniel Palmer of Victoria News interviewed me on the topic of the new Family Law Act.

    The new B.C. Family Law Act provides sweeping changes that will affect many of the 15,000 cohabiting couples in the Capital Region and more than 160,000 couples in the province.

    “If you have lived in a marriage-like relationship for at least two years, the law now considers you a spouse,” said Christine Murray, a partner at Victoria-based Cassels-Murray Family and Estates Law.

    For the first time, common-law couples are subject to the same legal rights and responsibilities of married couples.

    If a couple separates, any gains in assets or debt incurred during the relationship are now split down the middle, regardless of which partner owns them.

    “That property includes real estate, personal property, bank accounts, generally anything with value owned by one or both spouses at the date of separation,” Murray said.

    Property acquired before the relationship began, as well as gifts, inheritances and damage awards will still be protected from equal division.

    “If it is a couple’s intention to keep their property separate, they’ll have to enter into a written agreement to make sure they can have their intentions carried throughout their relationship,” Murray said.

    Some questions, such as whether or not both partners are responsible for the depreciation value of a home, will have to play out in court, she added. It could also be difficult to prove when a relationship began, as Kreisler and her partner illustrate with their roommate-to-romance situation.

    “It’s not a clear-cut, black-and-white test,” Murray said.

    Check out the full text of the article online here or in today’s paper.

    Family Law: guide to the new Family Law Act

    Most family law lawyers in British Columbia (including this one) spent the last two days engaged in the Continuing Legal Education Society of BC course: The Family Law Act: Everything You Always Wanted to Know But Were Afraid to Ask.

    If you are looking for a “Coles Notes” version of the new legislation, there is a very easy to read publication online: the Guide to the New BC Family Law Act.   The guide is currently available in English, French, Chinese, Spanish and Punjabi.

    Of course, just like the Coles Notes for Macbeth, you are going to miss out on some great stuff by skipping out on the full text…the full version of the Family Law Act is available online.