Duggan v. Duggan, 2020 NSSC 291

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Duggan v. Duggan , 2020 NSSC 291 ENDORSEMENT October 13, 2020 2020 NSSC 291 Mark William Duggan v. Angela Glenda Duggan Court File No. 1201-070759

(107935) Michelle Axworthy for Mark William Duggan Kenzie MacKinnon, Q.C., for Angela Glenda Duggan Appearances: • On September 14, 2020, a court conference was held. Mr. Duggan sought an urgent Order confirming the parties’ child would continue to attend Atlantic Memorial Elementary. Mr. Duggan was directed to provide additional information to Ms. Duggan. The matter was adjourned to a ½ day hearing, which was to proceed should the parties not be able to come to an resolution after Ms. Duggan received additional information from Mr.

Duggan. • On September 30, 2020, an emergency hearing was scheduled from 2:00 pm to 4:30 pm. An oral decision was rendered the same day. • I find costs should be based on the half day emergency hearing only. Decision: Costs are awarded in the amount of $3,500.00 payable by Ms. Duggan to Mr. Duggan by November 1, 2020. Requests / submissions: On September 30, 2020, Ms. Axworthy, on behalf of Mr. Duggan, made oral submissions for costs, followed on October 13, 2020, with a brief response to Mr. MacKinnon’s submissions on costs. Ms.

Axworthy asked this court to consider the following: the preparation time necessary in advance of the court telephone conference held on September 14, 2020, the effort to settle the matter by obtaining a letter form Mr. Duggan’s family’s nurse practitioner, and arranging a telephone conference with the nurse practitioner; the preparation time in advance of the half day emergency hearing, and disbursements. Mr. Duggan requested costs of $6,375.00 using Tariff A: three quarters of a day, $20,000 / 0.75 = $15,000 ($4000) + $1,500 + $825 (15%) + $50. Mr. MacKinnon filed written submissions on behalf of Ms. Duggan.

Mr. MacKinnon asked this court to consider certain mitigating circumstances, and to find the parties should bear their own costs. In the alternative, Mr. MacKinnon asked the court to consider the refenced mitigating circumstances, and to find the starting point for determining costs to be Tariff A, Scale 1. Mr. MacKinnon urged the court to limit the “amount of time” to a half day, referencing the emergency hearing held on September 30, 2020. He argued this court should not consider the time and the cost associated with Mr. Duggan filing a Notice of Variation Application, the time and cost associated with Mr.

Duggan preparing for the court conference held on September 14, 2020, the time and effort put forth by Mr. Duggan in an attempt to settle or resolve the issue by providing information to Ms. Duggan by way of a letter from, and a telephone call to Mr. Duggan’s family’s nurse practitioner. Mr. MacKinnon suggested the court should use Tariff A, Scale 1, including $1,500 for a half day hearing, and an additional $1000 for a half day hearing, plus disbursements of $50.00, for a cost award of $2,550. Reasons: 1 . The parties share an 8-year old child.

Upon separating in June 2018, the parties agreed to a shared parenting arrangement. They also agreed the child would attend Atlantic Memorial Elementary School.

2 . Mr. Duggan continued to reside near Atlantic Memorial Elementary School after the parties separated. Before Mr. Duggan’s usual parenting time with the parties’ child was interrupted between December 2019, and the end of July 2020, Mr. Duggan was residing with his new partner, part-time with the parties’ child, part-time with his two stepdaughters, and full time with his youngest daughter. 3 . Ms. Duggan moved to Halifax after the parties separated, and she has also re-partnered. As noted above, except for the period between December 2019 and the end of July 2020, Ms.

Duggan had a shared parenting relationship with Mr. Duggan. 4 . In December 2019, Mr. Duggan’s youngest daughter, whom he shares with his new partner, became seriously ill. The child required surgery, periods of chemotherapy, and medical follow up. His youngest daughter’s serious illness, combined with the onset of concerns related to Covid 19, led to Mr. Duggan spending much less time with the parties’ daughter. 5 . Between December 2019, and the end of July 2020, Ms. Duggan assumed primary responsibility for the parties’ child.

Including but not limited to driving the parties’ child to Atlantic Memorial Elementary School until schools closed in mid-March 2020. Ms. Duggan drove their child while Mr. Duggan was not available to do so during his usual parenting time. After schools closed in mid- March 2020, Ms. Duggan assumed primary responsibility for the parties’ child until late July 2020. 6 . Mr. Duggan acknowledged that Ms. Duggan assumed primarily responsibility for their child. He stated that Ms.

Duggan had not expressed any reluctance to do so while he, and his partner, were pre-occupied with their child’s ongoing treatment for a serious illness. 7 . Ms. Duggan indicated that throughout the relevant period she had asked Mr. Duggan about spending additional time with their daughter. Ms. Duggan expressed concern that Mr. Duggan had failed to spend any significant time with their child. Ms. Duggan expressed concern about the lack of information Mr. Duggan had provided to explain his absence in their child’s life. 8 . In mid July 2020, Ms. Duggan contacted Mr.

Duggan and took the position that the parties’ child should transfer to a school near her home. Ms. Duggan was concerned about the upcoming school year, and about Mr. Duggan’s failure to provide a definitive answer about if, or when, he would be able to resume his usual parenting time. 9 . Mr. Duggan disagreed with Ms. Duggan’s suggestion that the parties’ child should transfer to a school near her home. Mr. Duggan recalled Ms. Duggan had raised the issue the previous year and that he was opposed at that time.

He argued he was able to resume the shared parenting arrangement, that it was in the child’s best interests to remain at the same school she had attended since she started school, and that it would not be possible for him to drive their child to school in the Halifax area. In response to his objections, and his concern about not being able to transport the child to a new school, Ms. Duggan indicated she was prepared to transport their child to the new school during his parenting time. 10 . Near the end of July 2020, the parties reverted to their usual shared parenting arrangement.

In addition, the parties agreed to meet with a family therapist to discuss the child’s needs, and everyone’s circumstances as they relate to their child’s school placement. 11 . On August 11, 2020, Ms. Duggan registered the child at a school near her home, St. Stephen Elementary. 12 . On August 25, 2020, the parties met with a family therapist. Ms. Duggan suggested to Mr. Duggan and the therapist that the child wished to transfer to a school near her home. With the consent of both parties, the therapist met with the child via telephone.

The child expressed to the therapist her desire to remain at Atlantic Memorial Elementary School. 13 . The therapist recommended that, if Mr. Duggan was available to care for their child according to the shared parenting

schedule which was in place before December 2019, the child should remain at Atlantic Memorial Elementary School. The therapist further recommended that, if the child resided primarily with Ms. Duggan, the child should transfer to a school near her mom’s home. 14 . As noted above, Mr. Duggan resumed the shared parenting

schedule at the end of July 2020. Despite this, Ms. Duggan argued she did not have sufficient information regarding Mr. Duggan’s youngest’s child’s health status, to be reassured Mr. Duggan

would, or could, continue to adhere to the shared parenting arrangement throughout the upcoming school year. 15 . Ms. Duggan unilaterally arranged for the child to transfer from Atlantic Memorial Elementary School, to St. Stephen Elementary school. She did so without Mr. Duggan’s consent, and without an Order from this court. Mr. Duggan argued that it was not in their child’s best interests for Ms. Duggan to have transferred their child to another school without his consent, and before the matter could be heard. I agreed. 16 . On September 4, 2020 Mr. Duggan filed a Notice of Application.

He requested an emergency hearing to address the issue of the child’s school placement. 17 . On September 14, 2020, the parties participated in a court conference via telephone. The judge presiding reviewed the materials filed and directed Mr. Duggan to provide Ms. Duggan with information regarding his youngest daughter’s health needs, as they relate to his ability to resume his shared parenting role. 18 . Mr. Duggan’s family’s nurse practitioner, representing his youngest daughter’s IWK medical team, confirmed their support of sibling contact throughout Mr. Duggan’s youngest child’s illness. Ms.

Duggan argued that the IWK team’s position, as relayed by the nurse practitioner, was different from what Mr. Duggan had communicated to her. 19 . On September 16, 2020, Mr. Duggan arranged for Katrina MacDonald BScN RN, to provide a letter to the parties, and to speak to the parties via telephone. In part Ms. MacDonald stated: a. The treatment team was recommending “uninhibited supportive family life”, and b. …”she’s absolutely a child with medical issues, but I don’t think that it affects her parents’ ability to be available to their other children. No.” Ms.

Duggan argued that she required more medical information about Mr. Duggan’s daughter’s condition. I disagreed. 20 . The court found that Mr. Duggan and his partner were dealing with an extraordinary situation. They were coping with a child who was seriously ill, and the onset of concerns related to COVID 19 shortly after her surgery. If Mr. Duggan did clearly understand the youngest child’s medical team’s position regarding contact with the parties’ child, the court found it was understandable Mr. Duggan and his partner may choose not to take any chances during the relevant period.

The child has now stabilized, the IWK team’s position is clear, the world knows more about COVID 19, and Mr. Duggan has resumed his shared parenting arrangement. 21 . Despite the parties return to a shared parenting arrangement near the end of July 2020, despite Mr. Duggan’s reassurances, despite his objection to their child transferring to a new school, despite the family therapist’s recommendations, despite the reassurances from the child’s medical team, Ms. Duggan proceeded to an emergency hearing. 22 . As noted above, I found Ms.

Duggan should not have transferred the child to a new school placement without Mr. Duggan’s consent or an Order from this court. The child should have remained at Atlantic Memorial Elementary School. Ms. Duggan’s decision to have the parties’ child transfer to a new school, and then transfer back to her old school if Ms. Duggan was unsuccessful in court, is not behaviour this court can endorse or encourage. 23 . On September 16, 2020 Ms. Duggan received information from the child’s medical team at the IWK. Following receipt of the information Ms.

Duggan failed to arrange for the parties’ child to transfer back to Atlantic Memorial Elementary. Mr. Duggan had no option but to proceed with the emergency hearing on September 30, 2020. 24 . Ms. Duggan’s ongoing request for Mr. Duggan’s youngest child’s medical file was denied by the Court. I find that the file was being requested to determine when or if Mr. Duggan should have known the medical team’s position on sibling contact. In addition, Ms. Duggan may have wanted further reassurances that Mr. Duggan’s youngest child’s health condition had stabilized.

As of the date of the hearing I found I had sufficient evidence to support the finding that Mr. Duggan would be available to meet his shared parenting obligations vis a vis the parties’ child.

25. There are no guarantees regarding our children’s health. Mr. Duggan’s family has been through a tremendous ordeal. Hopefully, they have weathered the worst of it. Should the parties’ children be faced with future challenges of any sort, I hope they willseek out direction from mental health, and / or medical professionals as required. 26. Mr. Duggan was the successful party. The court denied the request for further medical information and ordered the childtransfer back to Atlantic Memorial Elementary School. Mr. Duggan is entitled to costs. Costs 27. Costs are in the discretion of the Court.

A successful party is generally entitled to a cost award, and a decision not to awardcosts must be for a “very good reason,” and be based on principle. Mr. Duggan was successful. 28. When determining costs, I must consider factors that increased the cost of litigation, and therefore the party’s entitlement tocosts. 29. Ms. Duggan was entitled to make inquiries, and she was entitled to obtain information related to Mr. Duggan’s availabilityfor parenting. However, she was not entitled to unilaterally change the child’s school placement. Ms.

Duggan’s decision to first registerthe child in a new school, and then have the child attend the new school, without Mr. Duggan’s consent or an Order from this Court mustbe discouraged. Ms. Duggan’s failure to follow through with the recommendation made by the family therapist must be discouraged. Given the exceptional circumstances, Ms. Duggan’s request for further medical information unrelated to the issue of any prospectiverecommendation regarding sibling contact, should be discouraged. 30. In McPhee, Hill and MacLean v. CUPE, 2008 NSCA 104.

Justice Cromwell, writing for the unanimous court said atparagraph 76: [76] The reasons why costs should generally be awarded to the successful party were set out by Saunders, J. (as he then was) inLandymore v. Hardy (1992), (NS SC), 112 N.S.R. (2d) 410 (S.C.): [17] Costs are intended to reward success. Their deprivation will also penalize the unsuccessful litigant. One recognizes the linkbetween the rising cost of litigation and the adequacy of recoverable expenses. The parties who sue one another do so at their peril. Failure carries a cost. There are good reasons for this approach.

Doubtful actions may be postponed for a sober second thought. Frivolous actions should be abandoned. Settlement is encouraged. ...” [Emphasis added by Counsel] 31. 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.): 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 an otherwise successful partyor to 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 ., 2005 NSFC 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 may dictate 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, is the dollar amount awarded to the successful party at trial. If the trial did not involve a money amount other factors apply. The nature of matrimonial 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 of trial 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 is preferable not to increase artificially the "amount involved", but rather, to award a lump sum". However, departure from the tariff should be infrequent. 11.

In determining what are "reasonable expenses", the fees billed to a successful party may be considered but this is only one factor among 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 examine the reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court. 32 . Justice Jollimore in Moore v.

Moore , 2013 NSSC 281 at paragraph 14 addressed the applicability of Tariff “C” to applications 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 in the Family Division are, in practice, trials. Rule 77’s Tariffs have not changed from the Tariffs of Rule 63 of the Nova Scotia Civil Procedure Rules (1972).

Despite the distinction between an action and application created in our current Rules, the Tariffs have not been revised. My view has not changed since I decided MacLean v. Boylan , 2011 NSSC 406: I don’t intend to give effect to the current Rules and their incorporation of the pre-existing Tariffs where this routinely results in lesser awards of costs for the majority of proceedings in the Family Division, such as corollary relief applications, variation applications and applications under the Maintenance and Custody Act or the Matrimonial Property Act.

In these situations I intend to apply Tariff A as has been done by others in the Family Division: Justice Gass’ decision in Hopkie , 2010 NSSC 345 and Justice MacDonald in Kozma , 2013 NSSC 20 . 33 . There was no specific monetary amount involved. 34 . I have considered both parties’ arguments, the unusual circumstances in this case, the complexity of the school placement issue, the parties’ conduct prior to the Notice of Application being filed with the Court, and after, and the circumstances leading up to the half day emergency hearing. 35 . Mr.

Duggan expended effort and expense trying to negotiate the parties’ child’s return to her school placement. He should not have been in that position. The child should have remained in her school placement and if Ms. Duggan had concerns she should have filed an application with the Court. 36 . On September 14, 2020, the court directed that Mr. Duggan to provide additional information to Ms. Duggan. I find the information provided to Ms. Duggan should have been sufficient to resolve the issue. 37 . Mr. Duggan was the successful party and he is entitled to costs for a half day hearing.

38 . I order Ms. Duggan to pay Mr. Duggan costs of $3,500.00, pursuant to Tariff A, scale 2, taking into account efforts to settle the matter, $2000 + $1000 + 450 + $50 disbursements. The full amount shall be paid by Ms. Duggan to Mr. Duggan by November 1, 2020. Directions: Ms. Axworthy shall prepare the Order for Costs. _____________________________ Cindy G. Cormier, J.S.C.(F.D.)