



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Marquez v. Zapiola,









2014 BCCA 35




Date: 20140130

Docket: CA039945

Between:

Griselda Patricia
Marquez

Appellant/
Respondent on Cross Appeal

(Claimant)

And

Miguel Angel
Zapiola

Respondent/
Appellant on Cross Appeal

(Respondent)






Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice D. Smith




Supplementary Reasons
to
Marquez v. Zapiola
, 2013 BCCA 433.




Counsel for the Appellant:



M. Guy
J. Sarophim





Counsel for the Respondent:



S. Specht





Place and Date of Hearing:



Vancouver, British
  Columbia

May 14, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

October 9, 2013





Written Submissions Received:



November
  8,
December 12 and 23, 2013





Date of Supplementary Judgment:



January
  30, 2014









Supplementary Reasons of the Court








Summary:

Supplementary reasons awarding
the appellant 50 percent of her costs on appeal and at trial.

Supplementary Reasons for
Judgment of the Court:

[1]

The appellant, Griselda Marquez, successfully appealed provisions relating
to spousal support, and by extension child support, in the final order granted in
the parties divorce action. The respondent, Miguel Zapiola successfully cross appealed
provisions relating to his access to the children and their attendance with him
at a single session with an independent counsellor. Both parties were
unsuccessful on other issues they had appealed and cross appealed. See
Marquez
v. Zapiola,
2013 BCCA 433.

[2]

The trial judge ordered the parties to each bear their own costs. The
appellant now seeks an order for costs of the appeal and of the proceedings in
the court below based on what she submits was her substantial success on matters
in dispute in both courts.

The
Primary Issues

[3]

The primary issues in the litigation were: (i) the computation of
the respondents income, in particular the amount to be deducted for business
expenses and whether bonus income should be included in that calculation for
the purposes of spousal and child support; (ii) whether income should be imputed
to the appellant; (iii) the appropriate quantum of spousal support;
(iv) the respondents access to the children; and (v) the related
issue of whether the children and the respondent should meet with an
independent counsellor to address issues of alienation.

[4]

The trial judge fixed the respondents income pursuant to the
Federal
Child Support Guidelines,
SOR/1997-175 (the 
Guidelines
) at
$124,800. He calculated that amount based on the respondents gross business
income excluding an amount for the respondents periodic bonus income, less 20
percent for reasonable business expenses. The appellant challenged that
calculation on appeal with mixed success. While this court increased the
respondents gross business income by an amount that took into account his
periodic receipt of bonus income, the trial judges determination of the
deduction for his reasonable business expenses was upheld.

[5]

The trial judge also imputed an annual income to the appellant of
$25,000. The appellant succeeded in overturning this finding on appeal.

[6]

Spousal support was fixed by the trial judge for an indefinite duration
and in an amount below the low end of that range under the
Spousal Support
Advisory Guidelines (SSAG
). He did so as a result of his reapportionment
of the equity in the family residence in favour of the appellant. On appeal,
the appellants spousal support was increased to an amount that fell within the
low end of the
SSAG
amount range. The indefinite duration of the support
was not changed.

[7]

The trial judge awarded the respondent reasonable access to the children
on the condition that they consented to the access. The respondent had alleged that
the appellant had alienated the children. On appeal, the condition attached to
the respondents access was rescinded. The respondent was also granted an order
that he had applied for at trial, namely that he and the children attend a
single session with an independent counsellor to discuss their relationship.

The
Secondary Issues

[8]

Other issues in these proceedings included: (i) custody and guardianship
of the children; (ii) s. 7
Guidelines
support for the
childrens special and extraordinary expenses; (iii) the family debts;
(iv) reapportionment of the equity in the family residence; and (v) the
division of investment assets (RRSPs and RESPs).

[9]

The trial judge awarded the parties joint guardianship of the children
with sole custody to the appellant. The respondent appealed this order and applied
for an order for joint custody of the children. He did not argue this ground of
appeal at the hearing.

[10]

The trial judge ordered the respondent to pay all of the childrens
special and extraordinary expenses pursuant to s. 7 of the
Guidelines
(with
post-secondary expenses coming out of the parties RESPs) for the years 2012
and 2013. He delayed the appellants obligation to contribute to these
expenses. On appeal, the respondent succeeded in obtaining an order that the
appellant contribute her proportionate share of the s. 7 expenses based on
her income (the only source was her spousal support) and that there be no delay
in the commencement of that order.

[11]

The trial judge accepted the respondents calculation of the family
debts and apportioned them equally between the parties. The appellant was
unsuccessful in appealing this order.

[12]

In regard to the family residence, the trial judge reapportioned the
equity in the home 70 percent in favour of the appellant. This order was not
challenged on appeal.

[13]

The trial judge ordered that the RESPs held by the respondent should be
used for the childrens post-secondary expenses. The appellant appealed that
order on the basis that the RESPs were a family asset and should be divided. At
the hearing she abandoned that ground of appeal.

[14]

The trial judge also declined to divide the parties respective RRSPs as
they were of equal value and the appellant had already dissipated those in her
name and was not seeking a share of the respondents. That issue was not appealed.

Discussion

[15]

In family law proceedings, as in all civil litigation, the usual rule is
that costs follow the event unless otherwise ordered:
Supreme Court Family
Rules,
R. 16-1(7)
; Gold v. Gold
(1993), 82 B.C.L.R. (2d) 180, 106
D.L.R. (4
th
) 452 at para. 19 (C.A.), leave to appeal refd [1993]
S.C.C.A. No. 411. Section 23 of the
Court of Appeal Act
similarly provides
that the successful party is entitled to the costs of the appeal, including the
costs of all applications made in the appeal, unless otherwise ordered.

[16]

Success in the event has been interpreted as substantial success: see
Fotheringham
v. Fotheringham,
2001 BCSC 1321, 13 C.P.C. (5th) 302, leave to appeal refd
2002 BCCA 454. In
Fotheringham,
Mr. Justice Bouck described this
standard as follows:

[45]
Gold
now seems
to say that substantial success in an action should be decided by the trial
judge looking at the various matters in dispute and weighing their relative
importance. The words substantial success are not defined. For want of a
better measure, since success, a passing grade, is around 50% or better,
substantial success is about 75% or better. That does not mean a court must
descend into a meticulous mathematical examination of the matters in dispute
and assign a percentage to each matter. Rather, it is meant to serve as a rough
and ready guide when [looking] at all the disputed matters globally.

[17]

When success is divided and no one party enjoys substantial success on
appeal, this Courts practice is to order that each party bears their own costs
(see
Mirza v. Mirza,
2007 BCCA 106, 237 B.C.A.C. 104), or to award the
more successful party, as determined by their success on the more important and
time-consuming issues, a portion of their costs (see
Cohen v. Cohen
(1995),
15 R.F.L. (4
th
) 84 (B.C.C.A.);
Tedham v. Tedham,
2003 BCCA
600, 20 B.C.L.R. (4th) 56, leave to appeal refd [2004] S.C.C.A. No. 4;
Turpin
v. Clark,
2009 BCCA 530, 4 B.C.L.R. (5th) 48, leave to appeal refd [2010]
S.C.C.A. No. 5).

[18]

In
Cohen,
Mr. Justice Donald, writing for the Court, explained:

[4]        There is something to
respondents counsels argument that there was divided success, however, I
disagree with his approach in reflecting that division in costs by counting up
the number of issues raised by the appellant and making the costs directly
proportional to the ratio of success on those issues. In my view,
reapportionment was much the largest issue in the case and occupied most of the
time. The appellant was successful in her claim for reapportionment. Many of
the other issues were, as appellants counsel submits, different approaches to
achieve the same result. I would award the appellant 75% of her costs.

[19]

Similarly, in
Tedham
the husband was substantially successful at
trial and was awarded costs. The wife successfully appealed with respect to two
of the main issues at trial and one of the less significant issues. She failed
on appeal in regard to the third major issue at trial. In those circumstances,
the Court awarded the wife 70 percent of her trial costs and 100 percent of her
appeal costs.

Conclusion

[20]

The trial judge ordered the parties to bear their own costs because of
their divided success at trial. On appeal, the appellant was the more
successful party on the more significant and time-consuming issues, though in
our view that success did not rise to the level of substantial success as
that term was described in
Fotheringham.

[21]

Based on our assessment of the parties respective success on appeal and
how that result affected their respective success at trial, it is our
conclusion that the appellant should receive 50 percent of her costs on appeal
and at trial.




The Honourable Madam Justice Newbury





The Honourable Mr. Justice
  Chiasson





The
  Honourable Madam Justice D. Smith







