Faulkner v. Faulkner, 2017 NSSC 355

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Faulkner v. Faulkner , 2017 NSSC 355 Date: 2017-07-26 Docket: 1201-069248; SFHD 099368 Registry: Halifax Between: Christopher Faulkner Petitioner v. Sherry Faulkner Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore

Summary: Costs of $7,000.00 awarded in divorce where the primary issue was characterizing the son’s living arrangements so that child support could be determined. Key words: Family, Costs Legislation: Nova Scotia Civil Procedure Rules, Rules 77.03(3), Tariff A, Scale 3 THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Faulkner v. Faulkner , 2017 NSSC 355 ENDORSEMENT Christopher Faulkner v.

Sherry Faulkner 1201-069248; SFHD 099368 July 26, 2017 • Tandiwe Nyajeka for Christopher Faulkner • Shawn A. Scott for Sherry Faulkner Sherry Faulkner seeks costs of $7,000.00 based on Tariff A and scale 3. Decision: Christopher Faulkner shall pay Sherry Faulkner costs of $7,000.00 on or before December 31, 2017.

Reasons: 1. The parties resolved parenting and property matters before their divorce trial which focused on child support, requiring acharacterization of their son’s residential arrangements which allowed Trey to choose where he’d spend his time. 2. Mr. Faulkner acknowledges that Ms. Faulkner was the more successful party and that costs should follow the result. 3. Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. Costs are in my discretion. Adecision not to award costs must be principled. 4.

Costs are to provide a “substantial contribution” to the successful parties’ legal expense. Ms. Faulkner’s expense was$18,375.72. This expense is not itemized to identify the portion that related to the trial and the portion which related to the settled issues. 5. One month before the trial each party made a settlement offer. 6. Ms. Faulkner offered to accept $10,668.00 for child support owed until the date of the hearing. Mr. Faulkner offerednothing. Ms. Faulkner was awarded $9,310.25: $1,357.75 less than the amount she had offered. 7. Ms.

Faulkner offered to accept prospective monthly child support of $433.00 (under

section 3 of the Federal Child SupportGuidelines). Mr. Faulkner offered nothing. Mr. Faulkner was ordered to pay $487.00. This is $54.00 more each month than Ms.Faulkner was willing to accept without going to trial. 8. Ms. Faulkner offered to accept $38.00 each month for Trey’s health insurance. Mr. Faulkner to pay $37.50 for Trey’shealth insurance. I ordered that Mr. Faulkner pay $42.75 for Trey’s health insurance. My order was more than Ms. Faulkner was willingto accept and more than Mr. Faulkner offered to pay. 9. Ms. Faulkner offered to pay 49% of the cost of Trey’s school hockey registration (of $1,500.00).

So, her offer was that Mr.Faulkner would pay $765.00 of this amount. Mr. Faulkner offered to pay the entirety of Trey’s hockey costs. He was ordered to pay$1,097.25, a 57% contribution to an annual hockey costs of up to $1,925.00. Only in this aspect was Mr. Faulkner’s offer superior towhat was ordered at trial and what Ms. Faulkner offered. 10. Overall, Ms. Faulkner’s offer was more favourable to Mr. Faulkner than the trial result. On an annual basis, the difference isapproximately $1,000.00. 11. Given the offers, Ms. Faulkner was the successful party and her refusal to accept Mr.

Faulkner’s offer was reasonable. 12. I may consider a party’s ability to pay costs in making a costs award. 13. Mr. Faulkner says he is currently heavily in debt. He owes almost $38,000.00 to the Canada Revenue Agency and has amortgage of over $212,000.00. The mortgage must encumber an asset, so he is not without assets. 14. Mr. Faulkner says he may be facing bankruptcy. Bankruptcy may be the appropriate option for Mr. Faulkner, especially ifhis debts stand in the way of him meeting his obligation to support Trey. 15.

The possibility of bankruptcy raises the concern that Judge Dyer mentioned in M.C.Q. [sic M.Q.C.] v. P.L.T., 2005 NSFC 27: some litigants may “consciously drag out court cases at little or no actual cost to themselves (because of public or third partyfunding [or because they will avoid legal fees through a bankruptcy]) but at a large expense to others who must “pay their own way”.” If this happens, Judge Dyer said, “Fairness may dictate that the successful party’s recovery of costs not be thwarted by later pleas ofinability to pay. [See A.E.M. v. R.G.L., 2004 BCSC 65 ].” 16. Mr.

Faulkner failed to respond to a Direction to Disclose in March 2016 and an Order to Disclose in August 2016. He issubject to a September 2016 order for costs which he has not paid. 17. There were three pre-trial conferences, rather than one which is the norm. Additional conferences were required because Mr.

Faulkner was not prepared with his financial information. 18 . Having regard to Ms. Faulkner’s expenses, the parties’ offers, and her success, I order Mr. Faulkner to pay Ms. Faulkner costs of $7,000.00 no later than December 31, 2017. This amount is inclusive of all disbursements. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)