Cruz v. Murray, 2016 NUCJ 18

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Cruz v.

Murray, 2016 NUCJ 18 Date: 20160802 Docket: 08-15-241 Registry: Iqaluit Applicant: Jonathon Raymond Cruz -and- Respondent: Heather Marie Murray ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Applicant): Erin Lapine Counsel (Respondent): Edward Hopkins Location Heard: Iqaluit, Nunavut Date Heard: July 26, 2016 Matters: Federal Child Support Guidelines, SOR/97-175, s. 21(2) ; Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 ; Costs REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I.

INTRODUCTION [ 1 ] This matter was before me on a Special Chambers Application brought by the respondent [Mother]. The Mother sought an

imputation of income of $600,000 to the applicant/petitioner [Father], a variance in child support based on the impugned income, spousal support, and authorization to take the child out of the jurisdiction for holidays. [ 2 ] At the hearing, the application to take the child out of Nunavut for holidays was granted on consent. The application for spousal support did not proceed as the Mother had not filed the necessary financial information, as conceded by her counsel. [ 3 ] The issues which did proceed were the application to impugn income and to vary child support.

These applications were brought because the Father, although having provided some financial disclosure, had not provided the specified financial disclosure required pursuant to the Federal Child Support Guidelines, SOR/97-175, s. 21(2) [Child Support Guidelines]. [ 4 ] In the result, income was impugned to the Father, although in an amount lower than $600,000, and child support was varied in accordance with the impugned income. [ 5 ] The Court invited the parties to submit written submissions on the issue of costs, which they have each done. II.

POSITIONS OF THE PARTIES [ 6 ] The Mother makes a claim for full indemnity (solicitor-client) costs.

She submits that the disclosure requirements of the Child Support Guidelines are clear and unambiguous and that the Father simply chose to ignore them. [ 7 ] The Mother submits that this failure necessitated the application in relation to income and child support. [ 8 ] The Father submits that the Mother is not entitled to full indemnity costs as she was not substantially successful and that full indemnity costs are appropriate only where the party against whom costs are awarded has engaged in serious misconduct that can be described as reprehensible, scandalous, or outrageous. III.

ANALYSIS [ 9 ] The Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 [Rules of Court] relating to costs provide: 643.

(1) Notwithstanding anything else in this Part, the Court has the discretion as to awarding of the costs of the parties, including third parties, to an action or a proceeding, the amount of costs and the party by whom or the fund or estate out of which the costs are to be paid, and the Court may (

a) award a gross sum in lieu of, or in addition to, any taxed costs; (

b) allow costs to be taxed to one or more parties on one scale and to another or other parties on the same or another scale; or (

c) direct whether or not any costs are to be set off. […] 646. Where a party has been granted assistance under the Legal Services Act or any other legal aid plan, the Court shall not take into consideration the fact that the party is receiving legal aid when considering an award of costs for or against that party. […] 648(1) Unless otherwise ordered, the costs of a solicitor shall be determined by the taxing officer, but shall not exceed the relevant amounts set out in

Schedule A.

[ 10 ] The common practice in this jurisdiction is for the Court to exercise its discretion under Rule 643 of the Rules of Court rather than awarding costs pursuant to

Schedule “A” of the Rules of Court [Schedule]. This recognizes that the Rules of Court are dated and that the

Schedule has failed to keep pace with the nature of litigation or, indeed, inflation. IV. CONCLUSION [ 11 ] A successful party has a reasonable expectation of costs. In exercising its discretion as to costs, the Court should consider the degree of success and the conduct of the parties, along with any other relevant factors. It is clear from Rule 646 of the Rules of Court that the fact that a litigant is represented by counsel appointed under the legal aid plan is not a relevant consideration in determining a costs award. [ 12 ] In this matter, the Mother achieved partial success in her application.

The relief sought in relation to spousal support did not proceed. The request to take the child south for holiday was granted on consent and may well have been resolved without the necessity of a court application. [ 13 ] Where the Mother did achieve success was in the imputation of income and the variance of child support. In my view, it is irrelevant that the amount of income impugned and the amount of child support payable as a consequence was lower than what was in the application. The lack of financial disclosure as required necessitated the application.

The parties were unlikely to come to an agreement on varying the amount of support. [ 14 ] The Mother, while entitled to recover some costs, is not entitled to solicitor-client costs. [ 15 ] The Mother will receive costs in the amount of $1,000. Dated at the City of Iqaluit this 2nd day of August, 2016 ___________________ Justice S. Cooper Nunavut Court of Justice