Roach v. Dutra, 2010 BCCA 264

• Judge: Prowse, Lowry and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Tuesday May 04, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 264;(2010), 288 B.C.A.C. 141 (CA)

Roach v. Dutra (2010), 288 B.C.A.C. 141 (CA);

    488 W.A.C. 141

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JN.003

Mary Carmen Roach (respondent/plaintiff/appellant on cross-appeal) v. Eduardo Dutra (appellant/defendant/respondent on cross-appeal)

(CA036978)

Mary Carmen Roach (respondent/plaintiff/appellant on cross-appeal) v. Eduardo Dutra (appellant/defendant/respondent on cross-appeal)

(CA037211; 2010 BCCA 264)

Indexed As: Roach v. Dutra

British Columbia Court of Appeal

Prowse, Lowry and Frankel, JJ.A.

May 25, 2010.

Summary:

The parties lived together for a period of time. Their relationship ended. Dutra brought a proceeding for partition and sale of a property under the Partition of Property Act. Roach commenced an action against Dutra seeking spousal support, and compensation for unjust enrichment, or a constructive trust, in relation to three properties. The two actions were ordered to be heard together.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 229, found that Roach and Dutra lived in a marriage-like relationship from Christmas 2000 until September 2006. Therefore, they met the definition of spouses under s. 1 of the Family Relations Act. Roach's claim for spousal support was within the one year limit. She was entitled to lump sum spousal support of $30,000 and compensation for unjust enrichment of $40,082.31. The court held that Roach achieved substantial success in the litigation and was entitled to recover her taxable costs and disbursements from the commencement of these proceedings until July 17, 2008, pursuant to rule 57(9) on Scale B. She was entitled to double costs commencing July 17, 2008 based on an offer to settle. Roach's claim for special costs was dismissed. Dutra appealed respecting support and costs. Roach cross-appealed respecting costs.

The British Columbia Court of Appeal dismissed the appeal and cross-appeal.

Family Law - Topic 1002

Common law relationships - Spouse - Meaning of - The parties lived together from the spring of 2001 until November 2003 - At that time, the parties agreed that they would continue their relationship but live in separate residences because of the strained relationship between Roach and Dutra's daughter from a prior relationship - The parties jointly purchased another property five minutes away and Roach and her two children moved into that property - In August 2004, Dutra gave Roach another engagement ring (first one was lost) and a wedding ring - Their relationship continued until mid-September of 2006 - Roach sought spousal support - At issue was whether the parties were "spouses" within the meaning of s. 1(1) of the Family Relations Act during the period they lived in separate residences - Section 1(1)(b) defined "spouse" as a person who lived with another person in a marriage-like relationship for a period of at least two years if the application under this Act was made within one year after they ceased to live together - The trial judge concluded that the parties continued to be spouses after November - They had a continuing emotional commitment to each other, continuing mutual expectations of fidelity, continuing presentation to friends and family as a couple, and had joint vacations - They provided care for each other's children - The British Columbia Court of Appeal dismissed Dutra's appeal - There was no basis for interfering with the trial judge's conclusion that the parties were spouses - Numerous indicia supported that conclusion - The wording of s. 1(1) did not preclude a finding that these parties could be found to be spouses simply because they began living in separate residences with a view to preserving their relationship - There were numerous indicia that the parties were, nonetheless, spouses within the meaning of s. 1(1) - See paragraphs 10 to 21.

Family Law - Topic 1003

Common law relationships - Cohabits - Meaning of - [See Family Law - Topic 1002 ].

Family Law - Topic 2325

Maintenance of wives and children - Maintenance of wives - Spouse - What constitutes - [See Family Law - Topic 1002 ].

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - The parties common law relationship ended - At issue was the partition and sale of property, spousal support, and compensation for unjust enrichment, or a constructive trust, in relation to three properties - The trial judge found that Roach enjoyed substantial success in the litigation and awarded costs against Dutra - His award of costs included an award of double costs for the final three days of trial based on a written offer by Roach to settle for an amount less than what she ultimately was awarded - Dutra appealed, arguing that Roach was not entitled to double costs because her offer did not strictly comply with rule 37B(1)(c) of the Rules of Court (which came into effect eight days before the offer was made) - He also argued that the trial judge erred in finding that Dutra's failure to make full and timely financial disclosure was a relevant factor in awarding double costs - The British Columbia Court of Appeal rejected the arguments - Roach's offer substantially complied with the requirements of an offer under rule 37B(1)(c): it was made in writing, it was delivered to Dutra (through his counsel), and it contained a sentence in terms similar to those set forth in rule 37B(1)(c)(iii) - Nor was there any suggestion that Dutra was misled by the offer in any way, or that he believed that he could disregard the offer with impunity with respect to costs because it did not track rule 37B(1)(c)(iii) word-for-word - Further, the trial judge was not precluded from taking into account Dutra's failure to make timely and complete financial disclosure as a factor relevant to costs under rule 37B(6)(d), namely, "any other factor the court considers appropriate" in determining that double costs was an appropriate disposition - The trial judge found that this conduct unreasonably prolonged the proceedings to Roach's financial detriment - See paragraphs 24 to 55.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - A trial judge found that Roach enjoyed substantial success in the litigation and awarded costs against Dutra - His award of costs included an award of double costs for the final three days of trial based on a written offer by Roach to settle for an amount less than what she ultimately was awarded - Dutra appealed, arguing that Roach was not entitled to double costs because her offer did not strictly comply with rule 37B(1)(c)(iii) of the Rules of Court - There was substantial compliance - The British Columbia Court of Appeal reviewed the history of the rule - The court stated that rule 37B provided for the exercise of a broad discretion by trial judges and provided guiding principles to apply in the exercise of that discretion - Rule 37B was intended to ameliorate the effects of the rigid application of rule 37 adopted by the appellate court in its earlier decisions - It was also intended to apply to those offers not covered by rule 37 which fell within the purview of rule 37A - The emphasis on the court's discretion under rules 37B(4), (5) and (6) would be undermined if rule 37B(1)(c)(iii) was interpreted as requiring word-for-word compliance before what was obviously an offer to settle could be found to be an offer to settle under the rule - However, substantial compliance of the offer was required - The court stated that counsel would be well advised to ensure that the language of their offers complied precisely with rule 37B(1)(c)(iii) to avoid any possibility of their offers being found deficient - See paragraphs 39 to 54.

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - [See both Practice - Topic 7241 ].

Cases Noticed:

Gostlin v. Kergin (1986), 3 B.C.L.R.(2d) 264; 1 R.F.L.(3d) 448 (C.A.), refd to. [para. 12].

Takacs et al. v. Gallo (1998), 105 B.C.A.C. 115; 171 W.A.C. 115; 48 B.C.L.R.(3d) 265; 157 D.L.R.(4th) 623 (C.A.), leave to appeal dismissed (1998), 232 N.R. 200; 121 B.C.A.C. 160; 198 W.A.C. 160 (S.C.C.), refd to. [para. 12].

Molodowich v. Penttinen (1980), 17 R.F.L.(2d) 376 (Ont. Dist. Ct.), refd to. [para. 12].

McColl v. Scott, [2001] B.C.T.C. 1109; 2001 BCSC 1109 (Master), refd to. [para. 12].

Roch v. Payne et al., [1999] B.C.T.C. 200 (S.C. Master), refd to. [para. 12].

Austin v. Goerz - see Austin Estate, Re.

Austin Estate, Re (2007), 249 B.C.A.C. 70; 414 W.A.C. 70; 2007 BCCA 586, refd to. [para. 21].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 28].

Calderbank v. Calderbank, [1975] 3 All E.R. 333 (C.A.), refd to. [para. 42].

Brown v. Lowe et al. (2002), 162 B.C.A.C. 203; 264 W.A.C. 203; 97 B.C.L.R.(3d) 246; 2002 BCCA 7, refd to. [para. 43].

Cridge v. Harper Grey Easton & Co. (2005), 207 B.C.A.C. 221; 341 W.A.C. 221; 2005 BCCA 33, refd to. [para. 44].

Jawanda et al. v. Jawanda et al., [2007] B.C.A.C. Uned. 28; 2007 BCCA 93, refd to. [para. 45].

Kurylo v. Rai et al. (2006), 224 B.C.A.C. 247; 370 W.A.C. 247; 2006 BCCA 176, refd to. [para. 45].

Stanger v. Dehen, [2009] B.C.T.C. Uned. 778; 2010 BCSC 484, refd to. [para. 51].

Lau v. Rai, [2009] B.C.T.C. Uned. 696; 2009 BCSC 696, refd to. [para. 51].

Hall v. Mougan, [2009] B.C.T.C. Uned. 1667; 2009 BCSC 1667, refd to. [para. 51].

Statutes Noticed:

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 1(1) [para. 11].

Rules of Court (B.C.), Supreme Court Rules, rule 37B(1)(c) [para. 34].

Supreme Court Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Rules.

Counsel:

D.J. Dykstra, for the appellant;

B. Findlay, for the respondent.

This appeal and cross-appeal were heard on May 4, 2010, before Prowse, Lowry and Frankel, JJ.A., of the British Columbia Court of Appeal. Prowse, J.A., delivered the following judgment on May 25, 2010.