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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”

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