Bruce v. Ramey, 2017 NSSC 60

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Bruce v. Ramey, 2017 NSSC 60 Date: 20170306 Docket: 1201-066911 Registry: Halifax Between: Alexandra Margaret Bruce Petitioner and Gary Anthony Ramey Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Heard: June 8, 9, 10, 11, 12 and 25, 2015 and August 21, 2015 in Halifax, Nova Scotia Issues: This is a costs decision. The trial decision is reported as Bruce v. Ramey , 2016 NSSC 31 .

Summary: The Court found the parties had mixed success but Ms. Bruce was more successful. The Court found Mr. Ramey’s conduct was a factor that weighed the costs award in Ms. Bruce’s favour. Costs of $30,000 in favour of Ms. Bruce were awarded.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Bruce v. Ramey , 2017 NSSC 60 Date: 20170306 Docket: 1201-066911 Registry: Halifax Between: Alexandra Margaret Bruce Petitioner and Gary Anthony Ramey Respondent Judge: Associate Chief Justice Lawrence I.

O’Neil Heard: June 8, 9, 10, 11, 12 and 25; August 21 and final written submissions in November 2015 in Halifax, Nova Scotia Counsel: Alex Embree, Counsel for the Applicant Diana Musgrave, Counsel for the Respondent By the Court : Introduction (Cost Decision) [ 1 ] This is a decision on costs after the Court’s ruling following a multi-day hearing in 2015 and the release of the Court’s decision in January 2016, reported as Bruce v. Ramey , 2016 NSSC 31 . A Corollary Relief Order issued in September 2016. Written submissions on costs were received on September 21 and 29, 2016.

[ 2 ] Pre-trial motions were held on January 13 and May 19, 2015. A settlement conference was held January 28, 2015. [ 3 ] The Court was required to distinguish business and matrimonial assets; to determine the appropriate division of the parties’ matrimonial property and debts; to set the level of ongoing spousal support and to determine the quantum, if any, of retroactive spousal support. Position of Ms. Bruce [ 4 ] Ms. Bruce argues she was the more successful party and should receive costs of $51,908.99 which amount includes disbursements of $7,970.99. She relies on scale 3 of Tariff A as provided by Rule 77.

She says Tariff A entitles her to $28,438 because the litigation is valued at between $200,001 - $300,000; and an additional $14,000 should be added to reflect seven (7) days for trial; an additional $1,500 is claimed under Tariff C because Mr. Ramey was unsuccessful in his motions to strike Dr. Wilson’s report and Ms. Bruce’s affidavit. [ 5 ] Ms. Bruce calculates the total cost of the litigation as $83,813.49 to September 22, 2016, inclusive of HST. [ 6 ] The submission does not identify what the net cost to Ms.

Bruce will be after any possible tax benefit is considered as provided by the Income Tax Act , ( R.S.C., 1985, c. 1 (5th Supp .)). [ 7 ] Mr. Embree submits Ms. Bruce’s financial success was $395,641 which he says is $201,866 less than she sought at trial; an amount which is 33 % less than her trial position. He says this is a minimum value of her success because the ultimate value will be greater if spousal support is extended beyond the review date. [ 8 ] In contrast, Mr. Embree says Mr. Ramey is required to pay 208 % more than his trial position, i.e. $267,196.

The amount ordered to be paid by him is also 93 % more than his settlement position i.e. $190,975 more than his settlement position. [ 9 ] Mr. Embree says the Court ordered $395,641 in Ms. Bruce’s favour; that Mr. Ramey’s trial position was the payment of $128,445 resulting in a difference of $267,196 and this Mr. Embree says is the amount involved for the purpose of determining a costs award. The amount involved in the litigation, in Mr.

Embree’s view, should therefore be considered as falling in the $200,000 - $300,000 range for purposes of applying Tariff A of the Costs and Fees Act , R.S.N.S. 1989, c.104. [ 10 ] To the amount involved, Mr. Embree submits should be added $14,000; an amount determined by assigning $2,000 in costs for each of 7 days of trial. [ 11 ] Tariff A has three scales. The basic scale is scale 2; scale 1 is 25 % less than the basic scale and scale 3 is 25 % more than the basic scale. [ 12 ] Mr. Embree says Ms. Bruce was successful in three areas, (

i) Retroactive spousal support; and (ii) Spousal support of $7,000/month, not $3,500 and achieving a more favourable property equalization. Position of Mr. Ramey [ 13 ] Counsel for Mr. Ramey argues that Ms. Bruce achieved approximately $189,762.50 more at trial than if she accepted his settlement offer but the amount achieved was $304,302.11 less than the minimum she was seeking. Counsel for Mr. Ramey acknowledges this conclusion is based on two assumptions. These are that spousal support will not be ordered past the November 2018

review date and secondly under the offer to settle it was proposed that spousal support would end in December 2019. [ 14 ] Counsel for Mr. Ramey says the duration of spousal support was a key issue at trial and a number of conclusions by the Court favour Mr. Ramey’s argument against spousal support of an indefinite duration. These include the Court not finding a compensatory basis for spousal; the Court not finding Ms. Bruce’s health condition as arising from the relationship with Mr. Ramey and the Court concluding this is an appropriate case for a review date. [ 15 ] On behalf of Mr.

Ramey, it is asserted that determining the more successful party as measured in financial terms is not possible given the contingencies associated with future spousal support; an assessment of success based on issues is more appropriate. Ms. Musgrave says Ms. Bruce was successful on ‘two key issues’, i.e. the quantum of ongoing spousal support and responsibility for the debt associated with the ‘investment’ autos. [ 16 ] Ms. Musgrave argues however that Mr. Ramey had success on issues not litigated because Ms. Bruce abandoned claims related to those matters on the eve of trial. These included (

a) her claim for an interest in the winery; (

b) a claim to an interest in the Annapolis Valley property; and (

c) a claim to shares in the numbered company. Ms. Musgrave cites R.77.02(1) in support of her argument that these results weigh in favour of an increased costs award in Mr. Ramey’s favour. [ 17 ] In

summary, she argues Mr. Ramey was successful on seven key issues at trial. These are: 1. The client book was found to be a business asset. 2. The 2003 increase in the mortgage was found to be a matrimonial debt. 3. The BMO line of credit was found to be a matrimonial debt. 4. The value accepted for the household contents is one advanced by Mr. Ramey. 5. Indefinite support was not ordered . 6. A compensatory basis for spousal support was not found. 7. The relationship with Mr. Ramey was not found to be a basis for Ms. Bruce’s health issues. [ 18 ] Ms.

Musgrave concludes that success was mixed but says as measured on a pure financial basis at trial; Ms. Bruce was modestly more successful by $44,753.44. She says the respective financial success of the parties should be set off and costs determined on that basis. This she submits will result in costs of $4,500 plus one day of Court time ($2,000), yielding a total of $6,500 inclusive of disbursements payable to Ms. Bruce. [ 19 ] The Court has a number of estimates of the success of each party. These estimates are for various comparisons. Some comparisons reflect (

a) Mr. Ramey’s offer to settle; (

b) Mr. Ramey’s trial position; (

c) Ms. Bruce’s pre-trial position; (

d) Ms. Bruce’s position at trial; (

e) the Court’s ruling on the various issues; and (

f) the uncertainty of the value to be assigned to the spousal support award given that a review has been set for the fall of 2018 (if desired by either party). General Principles Governing Costs [ 20 ] The governing Civil Procedure Rule on costs is now 77. This Rule incorporates the tariffs mandated by the Costs and Fees Act

when applying an amount involved assessment to determine costs payable by a party. The Rule provides inter alia: Scope of Rule 77 77.01

(1) The court deals with each of the following kinds of costs: (

a) party and party costs, by which one party compensates another party for part of the compensated party’s expenses of litigation; (

b) solicitor and client costs, which may be awarded in exceptional circumstances to compensate a party fully for the expenses of litigation; (

c) fees and disbursements counsel charges to a client for representing the client in a proceeding.

(2) Costs may be ordered, the amount of costs may be assessed, and counsel’s fees and disbursements may be charged, in accordance with this Rule. General discretion (party and party costs) 77.02

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement. Liability for costs 77.03

(1) A judge may order that parties bear their own costs, one party pay costs to another, two or more parties jointly pay costs, a party pay costs out of a fund or an estate, or that liability for party and party costs is fixed in any other way.

(2) A judge may order a party to pay solicitor and client costs to another party in exceptional circumstances recognized by law.

(3) Costs of a proceeding follow the result, unless a judge orders or a Rule provides otherwise.

(4) A judge who awards party and party costs of a motion that does not result in the final determination of the proceeding may order payment in any of the following ways: (

a) in the cause, in which case the party who succeeds in the proceeding receives the costs of the motion at the end of the proceeding; (

b) to a party in the cause, in which case the party receives the costs of the motion at the end of the proceeding if the party succeeds; (

c) to a party in any event of the cause and to be paid immediately or at the end of the proceeding, in which case the party receives the costs of the motion regardless of success in the proceeding and the judge directs when the costs are payable;

(

d) any other way the judge sees fit.

(5) A judge may order that costs awarded to a party represented by counsel with Nova Scotia Legal Aid or Dalhousie Legal Aid be paid directly to the Nova Scotia Legal Aid Commission or Dalhousie Legal Aid Service. . . . . . Assessment of costs under tariff at end of proceeding 77.06

(1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act , a copy of which is reproduced at the end of this Rule 77. . . . . . Increasing or decreasing tariff amount 77.07

(1) A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs.

(2) The following are examples of factors that may be relevant on a request that tariff costs be increased or decreased after the trial of an action, or hearing of an application: (

a) the amount claimed in relation to the amount recovered; (

b) a written offer of settlement, whether made formally under Rule 10 - Settlement or otherwise, that is not accepted; (

c) an offer of contribution; (

d) a payment into court; (

e) conduct of a party affecting the speed or expense of the proceeding; (

f) a step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily; (

g) a step in the proceeding a party was required to take because the other party unreasonably withheld consent; (

h) a failure to admit something that should have been admitted.

(3) Despite Rule 77.07(2)(b), an offer for settlement made at a conference under Rule 10 - Settlement or during mediation must not be referred to in evidence or submissions about costs.

. . . . . Disbursements included in award 77.10

(1) An award of party and party costs includes necessary and reasonable disbursements pertaining to the subject of the award.

(2) A provision in an award for an apportionment of costs applies to disbursements, unless a judge orders otherwise. [21] Justice B. MacDonald of this court summarized the applicable principles when assessing costs in L. (N.D.) v. L. (M.S.), 2010NSSC 159 and more recently in Gagnon v. Gagnon, 2012 NSSC 137 . She stated the following at paragraph 3 in L.(N.D.): 3 Several principles emerge from the Rules and the case law. 1. Costs are in the discretion of the Court. 2. A successful party is generally entitled to a cost award. 3.

A decision not to award costs must be for a "very good reason" and be based on principle. 4. Deference to the best interests of a child, misconduct, oppressive and vexatious conduct, misuse of the court's time, unnecessarilyincreasing costs to a party, and failure to disclose information may justify a decision not to award costs to a otherwise successful party orto reduce a cost award. 5. The amount of a party and party cost award should "represent a substantial contribution towards the parties' reasonable expenses inpresenting or defending the proceeding, but should not amount to a complete indemnity". 6.

The ability of a party to pay a cost award is a factor that can be considered; but as noted by Judge Dyer in M.C.Q. v. P.L.T. 2005NSFC 27: "Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves(because of public or third-party funding) but at a large expense to others who must "pay their own way". In such cases, fairness maydictate that the successful party's recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65]." 7.

The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8. In the first analysis the "amount involved", required for the application of the tariffs and for the general consideration of quantum, isthe dollar amount awarded to the successful party at trial. If the trial did not involve a money amount other factors apply. The nature ofmatrimonial proceedings may complicate or preclude the determination of the "amount involved". 9.

When determining the "amount involved" proves difficult or impossible the court may use a "rule of thumb" by equating each day oftrial to an amount of $20,000 in order to determine the "amount involved".

10. If the award determined by the tariff does not represent a substantial contribution towards the parties' reasonable expenses "it ispreferable not to increase artificially the "amount involved", but rather, to award a lump sum". However, departure from the tariff shouldbe infrequent. 11. In determining what are "reasonable expenses", the fees billed to a successful party may be considered but this is only one factoramong many to be reviewed. 12.

When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and also examinethe reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court. [22] Arriving at a costs assessment in matrimonial matters is difficult given the often mixed outcome and the need to consider theimpact of an onerous costs award on the families; and the children in particular.

The need for the court to exercise its discretion and tomove away from a strict application of the tariffs is often present. [23] As stated at paragraph 13 in Grant v. Grant, 2002 NSSF 2 , 2002 N.S.J. 14, Justice Williams observes that divorce andfamily law proceeding “often involve a multitude of separate and inter-related problems”.

The result is that a determination of success isalso more complex. [24] It should be noted that Rule 77.07 provides that tariff costs may be increased or decreased after considering enumerated factors. [25] Rule 77.08 provides for a lump sum of costs in cases where a tariff amount is not appropriate. [26] In O’Neil v. O’Neil, 2013 NSSC 64 Justice Beaton ordered the parties to bear their own costs. The parties hadexchanged offers to settle that were very close to the Court’s ruling on the quantum of spousal support ultimately ordered.

Both partieswere partially successful and no costs were ordered. [27] In Robar v. Arseneau, 2010 NSSC 175 , I ordered costs of $5,138 inclusive of HST and disbursements to be paid at arate of $150 per month. In that case, the Applicant’s case to set aside the parties’ separation agreement was dismissed and Ms. Robarwas found to have been unreasonable. She was also found to have rejected offers to settle. The matter required court time on two days. Iapplied scale 1 of Tariff “A”. The amount involved was within the $40,001-$65,000 range. Ms. Robar was subject to significantfinancial hardship at the time.

This was a factor weighing against a higher costs award. [28] The case of Provost v. Marsden, 2009 NSSC 365 involved an assessment of child support obligations. I applied Tariff“A”, there being a decision following a half day hearing. The amount involved was in the $40,001-$65,000 range. Success on the issueswas mixed but Mr. Marsden was found to have been the more successful party. This case also involved an offer to settle. Costs totalling$3,000 inclusive of HST and disbursements were ordered (2010 NSSC 423 , 2010 NSSC 423 (cost decision)). [29] The case of R. (A.) v.

R.(G.), 2010 NSSC 377 resulted in a costs award of $3,000 inclusive of HST and disbursements. The hearing concerned the parenting arrangement for the parties’ two children. The conduct of the Applicant was found to have beenaggravating. The amount involved was $20,000, this representing the amount involved when a full day of court time is consumed (2010NSSC 424 , 2010 NSSC 424 (cost decision)). [30] In Godin v. Godin, 2014 NSSC 46 , I ordered costs of more than $28,000 following a five day hearing and after havingincreased the scale by 50% to reflect Ms.

Godin’s mal fides in the conduct of the proceeding. [31] In Myer v. Lyle, 2014 NSSC 355 I ordered costs payable by Mr. Lyle in the amount of $2,500 payable at the rate of $50per month. At paragraph 24-26 of that decision I observed: [24] Each party played a significant role in forcing this matter to a hearing. Mr. Lyle communicated with Ms. Myer and her counsel

in February 2014 (tab J of his costs submission) and sought agreement on the parenting issue and child support. He was agreeable to thechild remaining with Ms. Myer in Nova Scotia and agreeable to paying the table amount of child support. Mr. Lyle’s position wasreasonable. These were major issues at trial. There was an opportunity to resolve these issues pre trial, had Ms. Myer responded to Mr.Lyle’s suggestions in a meaningful way. [25] I exercise my discretion to order costs of $2,500 payable by Mr. Lyle.

These shall be payable at the rate of $50 per month,commencing November 1, 2014 until paid in full. [26] The hearing was not complex, although it did consume a day and a half of Court time. The Court is persuaded that a costaward of a lesser amount than sought on behalf of Ms. Myer more appropriately reflects the needs of this family and the parties’ conductthroughout. [32] Justice Jollimore in Moore v. Moore, 2013 NSSC 281 at paragraph 14 addressed the applicability of Tariff “C” toapplications in the Family Division: [14] Initial guidance in determining costs is the tariff of costs and fees.

The proceeding before me was a variation application. Formally, Tariff C applies to applications. As I said in MacLean v. Boylan, 2011 NSSC 406 at paragraph 30, applications inthe Family Division are, in practice, trials. Rule 77’s Tariffs have not changed from the Tariffs of Rule 63 of the Nova Scotia CivilProcedure Rules (1972). Despite the distinction between an action and application created in our current Rules, the Tariffs have not beenrevised. My view has not changed since I decided MacLean v.

Boylan, 2011 NSSC 406: I don’t intend to give effect to the current Rulesand their incorporation of the pre-existing Tariffs where this routinely results in lesser awards of costs for the majority of proceedings inthe Family Division, such as corollary relief applications, variation applications and applications under the Maintenance and Custody Actor the Matrimonial Property Act.

In these situations I intend to apply Tariff A as has been done by others in the Family Division: JusticeGass’ decision in Hopkie, 2010 NSSC 345 and Justice MacDonald in Kozma, 2013 NSSC 20 . [33] Our Court of Appeal reviewed the law governing awards of costs in family proceedings in Armoyan v. Armoyan, 2013 NSCA136 . It is helpful to incorporate the court’s discussion of the basis upon which costs are ordered and the meaning and effect ofRule 77. Fichaud, J. on behalf of the Court summarized how costs should be quantified beginning at paragraph 9: [9] Justice Campbell did not quantify costs for Ms. Armoyan.

So there is no issue of appellate deference to the trial judge’s exercise ofdiscretion on quantification. The Court of Appeal is calculating costs at first instance for both the forum conveniens proceeding in theFamily Division and the two appeals in this Court. [10] The Court’s overall mandate, under Rule 77.02(1), is to “do justice between the parties”. [11] Solicitor and client costs are engaged in “rare and exceptional circumstances as when misconduct has occurred in the conduct ofor related to the litigation”. Williamson v. Williams, (NS CA), 1998 NSCA 195, [1998] N.S.J. 498, per Freeman,J.A..

This Court rejected most of Mr. Armoyan’s submissions on the merits. But there has been no litigation misconduct in the NovaScotia proceedings that would support an award of solicitor and client costs. So these are party and party costs. [12] Rule 77.06 says that, unless ordered otherwise, party and party costs are quantified according to the tariffs, reproduced in Rule77. These are costs of a trial or an application in court under Tariff A, a motion or application in chambers under Tariff C (see also Rule77.05), and an appeal under Tariff B.

Tariff B prescribes appeal costs of 40% trial costs “unless a different amount is set by the NovaScotia Court of Appeal”. [13] By Rule 77.07(1), the court has discretion to raise or lower the tariff costs, applying factors such as those listed in Rule 77.07(2). These factors include an unaccepted written settlement offer, whether or not the offer was made formally under Rule 10, and the parties’conduct that affected the speed or expense of the proceeding. [14] Rule 77.08 permits the court to award lump sum costs. The Rule does specify the circumstances when the Court should departfrom tariff costs for a lump sum.

Tariff or Lump Sum? [15] The tariffs are the norm, and there must be a reason to consider a lump sum. [16] The basic principle is that a costs award should afford substantial contribution to the party’s reasonable fees and expenses. InWilliamson, while discussing the 1989 tariffs, Justice Freeman adopted Justice Saunders’ statement from Landymore v.

Hardy (1992), (NS SC), 112 N.S.R. (2d) 410: The underlying principle by which costs ought to be measured was expressed by the Statutory Costs and Fees Committee in these words: “… the recovery of costs should represent a substantial contribution towards the parties’ reasonable expenses in presenting or defendingthe proceeding, but should not amount to a complete indemnity.” Justice Freeman continued: In my view a reasonable

interpretation of this language suggests that a “substantial contribution” not amounting to a complete indemnitymust initially have been intended to mean more than fifty and less than one hundred per cent of a lawyer’s reasonable bill for the servicesinvolved. A range for party and party costs between two-thirds and three-quarters of solicitor and client costs, objectively determined,might have seemed reasonable.

There has been considerable slippage since 1989 because of escalating legal fees, and costs awardsrepresenting a much lower proportion of legal fees actually paid appear to have become standard and accepted practice in cases notinvolving misconduct or other special circumstances. [17] The tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventionalcase whose circumstances conform generally to the parameters assumed by the tariffs.

The remaining discretion is a mechanism forconstructive adjustment that tailors the tariffs’ model to the features of the case. [18] But some cases bear no resemblance to the tariffs’ assumptions. A proceeding begun nominally as a chambers motion,signalling Tariff C, may assume trial functions, contemplated by Tariff A. A Tariff A case may have no “amount involved”, otherimportant issues being at stake. Sometimes the effort is substantially lessened by the efficiencies of capable counsel, or handicapped byobstructionism. The amount claimed may vary widely from the amount awarded.

The case may assume a complexity, with acorresponding workload, that is far disproportionate to the court time, by which costs are assessed under provisions of the Tariffs. Conversely, a substantial sum may turn on a concisely presented issue. There may be a rejected settlement offer, formal or informal, thatwould have saved everyone significant expense. These are just examples.

Some cases may combine several such factors to the degreethat the reflexive use of the tariffs may inject a heavy dose of the very subjectivity – e.g. to define an artificial “amount involved” asJustice Freeman noted in Williamson – that the tariffs aim to avoid. When this subjectivity exceeds a critical level, the tariff may bemore distracting than useful. Then it is more realistic to circumvent the tariffs, and channel that discretion directly to the principledcalculation of a lump sum.

A principled calculation should turn on the objective criteria that are accepted by the Rules or case law.[emphasis added] [19] In my view, this is such a case for a lump sum award. I say this for the following reasons. [20] Justices of the Family Division have stated that trial-like hearings in matrimonial matters are more appropriate for Tariff A thanTariff C: Hopkie v. Hopkie, 2010 NSSC 345 , para 7, per Gass, J.; MacLean v. Boylan, 2011 NSSC 406 , paras 29-30,per Jollimore, J.; Kozma v. Kozma, 2013 NSSC 20 , para 2, per MacDonald, J.; Robinson v.

Robinson, 2009 NSSC 409, para 10, per Campbell, J.. [21] The forum conveniens proceeding was brought by Ms. Armoyan’s “Notice of Motion” that, as Mr. Armoyan’s counsel pointsout, literally would engage Tariff C. But the proceeding ripened with the features of a complex trial that spanned ten days of hearingover eleven months. It was not remotely equivalent to a conventional chambers motion, and its natural home would be Tariff A.

[22] But this proceeding had no “amount involved” within Tariff A. The issue was whether the Courts of Nova Scotia or Floridawould take jurisdiction. That matter involved broad consideration of comparative comity, fairness and efficiency in the administration ofjustice. The “amounts” are for the separate matrimonial proceedings in Florida and this province.

In Williamson Justice Freeman notedthat the artificiality of a notional “amount involved” supported the use of a lump sum award: Any attempt to adjust the amount involved to factor in the special circumstances of the present appeal to arrive at a more just resultwould require the arbitrary determination of a fictitious “amount involved” bearing no real relationship to the matters in issue. [23] Rule 77.07(2)(

e) permits an adjustment based on “conduct of a party affecting the speed or expense of the proceeding”. Thesupervening criterion is that the costs award “do justice between the parties” under Rule 77.02(1). [34] Commenting on the impact offers to settle can have on an award, Justice Fichaud stated the following at paragraph 27: [27] Rule 77.07(2)(

b) permits the adjustment of a costs award based on an unaccepted written settlement offer, whether madeformally under Rule 10 “or otherwise”. Rule 59.39(7) excludes Rules 10.05 to 10.10 (formal offers to settle in the Supreme Court -General Division) from family proceedings. But Rule 77.07(2)(

b) is not excluded, and unaccepted offers of settlement may impact costsin family proceedings: e.g. Fermin v. Yang, 2009 NSSC 222 , para 3, # 12, per MacDonald, J.. I agree with Justice Campbell’ssentiments in Kennedy-Dowell v. Dowell (2002), 2002 NSSF 50 , 209 N.S.R. (2d) 392 (S.C.), under the former Rules: [12] In my opinion, the reasonableness of both the trial position and the bargaining position (including the timing of concessions made)is a very important factor in deciding whether an order for costs should be made.

This is especially true in family law matters becausethe parties are often of limited resources and can often face legal fees after a trial which make the process uneconomical and devastatingto the family including children. Family law disputes are capable of out of court resolution in many cases and the policy of the courtregarding costs should promote compromise and reasonableness in the negotiating process.

For that reason, the court should measureeach party’s bargaining position against the court’s adjudication to measure the reasonableness of each position.… To similar effect - Justice Campbell’s comments in Robinson, paras 13-15. [35] Ultimately, in Armoyan Justice Fichaud found a lump sum award of costs as the most appropriate mechanism for determiningcosts. He awarded costs of $306,000 including disbursements. Conclusion [36] Ms. Bruce was the more successful party.

I accepted her submissions, in part, on the use of funds that flowed from the mortgageincreases; on how certain debts associated with the car business were not retired with the revenue generated when the vehicles were soldand my ruling on spousal support was more favourable that which was sought by Mr. Ramey. [37] The offer to settle dated February 6, 2015 from Mr. Ramey was less favourable than the decision in favour of Ms. Bruce. Nevertheless, Mr. Ramey also had substantial success as pointed out by his counsel. He was less successful than Ms. Bruce. Successtherefore was mixed. [38] Mr.

Ramey’s conduct as a litigant is a significant negative factor for him. Disclosure by him was incomplete in the pre-trialperiod and even as a witness, it was my conclusion that he was not forthcoming. This is commented upon beginning at paragraph 72 ofmy trial decision. He had a duty to account to Ms. Bruce and to the Court. He failed to do so. The result was the need for the trial to belonger than was necessary. [39] I order costs of $30,000 payable to Ms. Bruce inclusive of HST and disbursements.

ACJ