Clients often ask if they can get some or all of their legal fees reimbursed by their former spouse if they “win” the case. What is often forgotten is that there are no real winners in a family law proceeding. When there are children involved, both parents typically find that the amount of time they get to spend with their children is reduced, since they now have to share parenting time. The children also often suffer when the parents involve them in contentious battles for custody. In addition, in terms of property division and support, where the parties were once a unified household, usually with two incomes and one set of family expenses, there are now two households to maintain, with less money to go around, as the assets are often equally divided.
Nonetheless, following a trial in which one party is deemed “substantially successful”, “costs” in a family law proceeding are often awarded. However, the “costs” ordered by the Court are not equivalent to the actual legal fees a party may have paid. Costs are based on a tariff set out in the Supreme Court Family Rules Costs, and usually are only around 10 to 30% of what a party actually paid their lawyer. However, in certain egregious cases, the Court can award “special costs”. Such was the case in a recent decision issued by the British Columbia Supreme Court in J.M.C. v. Y.S., 2018 BCSC 915.
In the trial J.M.C. v. Y.S., 2015 BCSC 1770 , the wife, Ms. S, had attempted to deceive the Court and her ex-husband, Mr. C, by doctoring her bank records to substantiate a loan she alleged her parents had made to her. The deceit was only revealed mid-trial, when Mr. C obtained an order that the bank provide the records directly to his lawyer, which revealed that the bank records did not match the records produced by Ms. S. During the trial, Ms. S argued that her ex-husband’s request for bank records directly from the bank were without foundation and fueled by his paranoia. Of course, Mr. C was ultimately proven right when the real bank records showed that Ms. S’s bank records had been altered. The bank’s assistant operations manager was also called as a witness to testify as to the falsification of the bank records by the wife. After an 18-day trial, Ms. S was found to have lied repeatedly under oath, colluded with her parents to deceive the Court with respect to both financial issues and parenting issues, unreasonably denied Mr. C’s parenting time and engaged in a concerted course of conduct to minimize Mr. C’s role in his child’s life.
In the costs decision J.M.C. v. Y.S., 2017 BCSC 59, the Court ordered that Ms. S pay Mr. C special costs, due to her egregious conduct during the trial and as a result of Mr. C being substantially successful at trial on both the financial issues and the parenting issues. The special costs were then assessed before the Registrar in J.M.C. v. Y.S., 2018 BCSC 915 , who awarded $104,172.48 for Mr. C’s trial costs and $29,500 for the special costs assessment, for a total of $133,672.48. While Mr. C actually spent about $15,000 more than that in his legal fees, it is extremely rare for special costs to be awarded. Ultimately, Mr. C was substantially successful at trial and able to recover most of his legal fees from Ms. S. Given Ms. S’s conduct, this is an unsurprising result. The Court awards these types of special costs awards in extreme and egregious cases, in order to deter litigants from behaving similarly in the future.
If you or someone you know is facing a complex divorce or separation involving child custody or financial issues, please contact one of our Vancouver or Langley family law lawyers.