






Citation:


Archibald 
          v. Archibald


Date:
20030102







2003 
          BCCA 4


Docket:


CA028950

CA029597

CA029759













COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






MONICA FAITH ARCHIBALD






APPELLANT

(RESPONDENT 
          BY CROSS-APPEAL)

(PLAINTIFF}








AND:






RANDAL DAVID ARCHIBALD






RESPONDENT

(APPELLANT 
          BY CROSS-APPEAL)

(DEFENDANT)














Before:


The 
          Honourable Madam Justice Newbury







The 
          Honourable Madam Justice Saunders







The 
          Honourable Madam Justice Levine










Appellant 
          acting on her own behalf




C. 
          Linde


Counsel 
          for the Respondent






Written 
          Submissions Received:


Vancouver, 
          British Columbia




October 
          30 and November 12, 2002




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 2, 2003











Supplementary 
    Reasons of the Court on Costs


Reasons for Judgment of the Court:






[1]

In reasons for judgment released on August 28, 2002, the Court ordered 
    that the parties to these appeals bear their own costs.  The parties made 
    no submissions on costs at the hearing of the appeals.  We have since received 
    written submissions.

[2]

The procedural difficulties that arose in hearing these appeals are 
    outlined in our earlier reasons for judgment.  Our order that the parties 
    bear their own costs acknowledged that the costs of the appeals were affected 
    by those procedural difficulties.

[3]

Counsel for the respondent argues that his client was successful on 
    all three appeals and that costs in this Court generally follow the event, 
    unless there are reasons for a different order: see
Gold v. Gold
(1993), 82 B.C.L.R. (2d) 180 (C.A.).  He submits that if the three appeals 
    were collapsed into one, his client would be entitled to his costs.  The procedural 
    difficulties were not of his client's making, and he should not be penalized.

[4]

The appellant says that the factors set out in
Gold
(at 
    para. 20) to be considered by a judge in awarding costs apply to her:

Factors 
    such as hardship, earning capacity, the purpose of the particular award, the 
    conduct of the parties in the litigation, and the importance of not upsetting 
    the balance achieved by the award itself are all matters which a trial judge, 
    quite properly, may be asked to take into account.

[5]

She points out that the trial judge took those factors into account 
    in ordering that the parties bear their own costs of the trial, when he said 
    in his reasons for judgment concerning costs:

[7]  
    Sad to say, both parties have been impoverished by the ramping up of costs 
    due to the mother's actions.  The father is better able to recover, as his 
    income is substantially greater than that of the mother, and will likely remain 
    so.  She is not in a position to pay a substantial cost award.

[6]

The appellant disclosed in her submissions that she has incurred substantial 
    debt in these proceedings, which will "take the rest of her life to pay". 
     The respondent did not address his financial circumstances in his submissions. 
     As the trial judge noted, however, both parties bear the financial scars 
    of this litigation.

[7]

The facts remain that the mother pursued the appeals and was unsuccessful. 
     Having considered the parties' submissions, we are now of the view that we 
    gave insufficient consideration to those facts in our order with respect to 
    costs.

[8]

The substantive issues presented by the trial judge's orders with respect 
    to custody and access were primarily addressed by the first appeal.  The Court 
    found that the trial judge did not err in deciding that the parties would 
    have joint custody of the children, with the children's place of residence 
    with the father.  The second and third appeals arose primarily because the 
    initial orders of the trial judge were interim orders, which gave rise to 
    the procedural difficulties.  On the hearing of the appeals, the procedural 
    difficulties took a prominent position, which is reflected in the initial 
    order for costs.

[9]

The order that the parties bear their own costs is varied to provide 
    that the respondent will have the costs of the first appeal and the parties 
    will bear their own costs of the second and third appeals.





The 
    Honourable Madam Justice Newbury







The 
    Honourable Madam Justice Saunders







The 
    Honourable Madam Justice Levine




