“Costs” refers to the cost of litigating a dispute in court. In British Columbia, under rule 16-1 (7) of the Supreme Court Family Rules, the Supreme Court has authority to make one party pay the other party’s costs. The lion’s share of a costs award tends to be legal fees, but these awards also include disbursements such as expert reports.
The specter of costs is designed to encourage parties to take reasonable positions and settle their disputes out of court. Mr. Justice Greyell recently issued a decision, S.D.H. v. T.H. 2016 BCSC 780, which reminds us of the test for cost awards in the Supreme Court of British Columbia.
Per rule 16-1 (7), costs must be awarded to the successful party unless the court orders otherwise. The issue thus turns on the meaning of “success”. Determination of “success” involves the four step analysis laid down by Mr. Justice Bouck in Fotheringham v. Fotheringham, 2001 BCSC 1321:
- Focus on the matters in dispute at trial which may or may not include issues explicitly mentioned in the pleadings;
- Assess the weight or importance of those matters to the parties;
- Conduct a global determination with respect to the matters in issue and determine which party substantially succeeded overall;
- If one party substantially succeeded, consider whether there are reasons to deprive the winning party of costs.
The Court of Appeal approved this test in Marquez v. Zapiola, 2014 BCCA 35.
BC family lawyers need to be aware of this test in order to effectively advise clients; while there are few things better than obtaining costs, there are few worse than being assessed for costs.
Jeffrey L. Hartman