Gold v. Gold (1993), 32 B.C.A.C. 287 (CA);
53 W.A.C. 287
MLB headnote and full text
Gwendolyn Joan Gold (plaintiff/defendant by counterclaim/respondent) v. Norman Arthur Gold (defendant/appellant) and Golden West Holdings Ltd. (plaintiff by counterclaim/appellant)
(CA014368; CA015454; CA015493; CA015494)
Indexed As: Gold v. Gold (No. 2)
British Columbia Court of Appeal
McEachern, C.J.B.C., Legg, Proudfoot, Wood and Rowles, JJ.A.
September 1, 1993.
Summary:
A trial judge acting under the Family Relations Act varied the provisions of a marriage agreement which was found to be unfair to the wife. The husband appealed. The wife cross-appealed.
The British Columbia Court of Appeal, in a decision reported in 32 B.C.A.C. 275; 53 W.A.C. 275, allowed the husband’s appeal in part, adjusting the division of certain tax shelter developments owned by the husband. The court dismissed the wife’s cross-appeal.
In the following decision, the Court of Appeal held that the trial judge erred in depriving the wife of her costs at trial, and ruled that the costs of the appeal should also follow the event.
Family Law – Topic 966
Husband and wife – Actions between husband and wife – Practice – Costs – The British Columbia Court of Appeal held that the rule which should govern the award of costs in matrimonial proceedings should be the same as in other civil litigation, namely, that costs should follow the event unless the court otherwise orders as specified in rule 57 – When the court should order otherwise was a matter of discretion to be exercised judicially by the trial judge, as directed by the Rules of Court – 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 were all matters which a trial judge could properly consider – See paragraphs 19 to 20.
Cases Noticed:
Ripley v. Ripley (1991), 30 R.F.L.(3d) 41 (B.C.C.A.), consd. [para. 1].
Lawrence v. Lawrence (1981), 47 N.S.R.(2d) 100; 90 A.P.R. 100; 25 R.F.L.(2d) 130 (C.A.), consd. [para. 7].
Nolet v. Nolet (1985), 68 N.S.R.(2d) 370; 159 A.P.R. 370; 46 R.F.L.(2d) 388 (C.A.), consd. [para. 8].
Wilson v. Wilson (1985), 70 N.S.R.(2d) 371; 166 A.P.R. 371; 49 R.F.L.(2d) 184 (C.A.), consd. [para. 9].
Piercy v. Piercy (1991), 60 B.C.L.R.(2d) 61 (S.C.), consd. [para. 16].
Meneghetti v. Meneghetti (1979), 17 B.C.L.R. 200 (S.C.), refd to. [para. 19].
Statutes Noticed:
Civil Procedure Rules (N.S.), rule 57.27 [paras. 6, 8].
Family Relations Act, R.S.B.C. 1979, c. 121, sect. 51 [para. 21].
Rules of Court (B.C.), Supreme Court Rules, rule 37 [para. 15]; rule 57 [para. 19]; rule 57(9) [para. 11]; rule 57(14) [para. 12]; rule 57(15) [para. 13]; rule 60 [para. 14]; rule 60(16) [para. 14].
Authors and Works Noticed:
Turriff, Gordon, An Analysis of the Judicial Approach to Costs Risks in Family Cases (1993), vol. 51, Part 1, The Advocate, p. 93 [para. 5].
Counsel:
Gary Letcher and J.S. McLean, for the defendant/appellant/respondent on cross-appeal;
Barbara J. Nelson, Q.C., and Phyllis Kenney, for the plaintiff/respondent/appellant on cross-appeal.
This appeal was heard in Vancouver, British Columbia, on April 28, 1993, before McEachern, C.J.B.C., Legg, Proudfoot, Wood and Rowles, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on September 1, 1993, by McEachern, C.J.B.C.
