Bembridge v. Tulloch, 2016 NSSC 374

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Bembridge v. Tulloch , 2016 NSSC 374 Date : 20161025 Docket : Halifax No. 1201-67370 Registry : Halifax Between : Shelley Leigh Bembridge Applicant v. Innis Eric Tulloch Respondent ENDORSEMENT October 25, 2016 Shelley Leigh Bembridge v. Innis Eric Tulloch Court file no. 1201-67370 [ 1 ] Significant resources have been used to resolve certain issues and to advance evidence to assist the court to come to a final determination on others. [ 2 ] I have been asked by legal counsel for Mr. Tulloch to consider a cost award against Ms.

Bembridge in relation to the divorce trial which was held February 23, 24, and 25, 2016 and concluded with an oral decision being rendered on April 21, 2016. I directed the parties to file written submissions on costs within one month of the decision rendered April 21, 2016. [ 3 ] Mr. Tulloch's submissions were received May 19, 2016. On July 4, 2016 Ms. Bembridge contacted the court to advise she would be filing written submissions with respect to costs. As of October 26, 2016 Ms. Bembridge had not filed any arguments with respect to costs.

Appearances • November 13, 2013, two hour interim hearing (parenting, child support and exclusive possession of the matrimonial home), shared parenting granted and Ms. Bembridge was ordered to pay the set off amount on an interim basis. • May 1, 2014, half hour date assignment conference adjourned to a one hour hearing of motion for an assessment as requested by Ms. Bembridge. • June 3, 2014, one hour hearing of motion Ms. Bembridge's motion for an assessment was dismissed, matter adjourned for a settlement conference October 16, 2014. • August 18, 2014 correspondence from Ms.

Bembridge's legal counsel indicating Ms. Bembridge had provided instructions to cancel the settlement conference, to set a date for another date assignment conference to

schedule trial dates. • November 7, 2014 half hour conference to set date for pre-trial, trial dates and filing deadlines. • April 15, 2015 half hour pre trial conference was held. On an interim basis the parties agreed to a parenting arrangement whereby the eldest child resided with Mr. Tulloch and both Mr. Tulloch and Ms. Bembridge shared the care of the youngest child. Ms. Bembridge was ordered to pay the set off amount of child support $500.00 on an interim basis (one split / one shared care). o May 15, 2015 request for settlement conference.

Trial dates June 4, 2015 - o June 8, 2015 were released by request of the parties. o June 23, 2015 settlement conference date re-scheduled per direction of the court. o July 7, 2015 two hour settlement conference scheduled, matter adjourned to further settlement conference August 28, 2015. o August 28, 2015 two hour settlement conference scheduled, direction given to file additional information regarding child support ( Ms. Bembridge directed not to file more than ten pages ) adjourned to further settlement conference discussions on October 7, 2015.

o October 7, 2015 two hour settlement conference scheduled, some issues o resolved, further adjournment to October 13, 2015 to review a draft order including terms of agreement on some issues. o October 28, 2015 one hour settlement conference scheduled. No settlement reached.

Adjourned for continuation of settlement discussions on November 5, 2015. ▪ February trial dates remained on docket but adjournment slip granted for a 2 day trial in April, May or June 2016. o November 5, 2015 one half hour settlement conference, direction that running file from October 28, 2015 be printed and then deleted from the electronic record. Printed copy is to be placed in a sealed envelope in the file. ▪ Direction that if there is agreement with respect to financial issues being dealt with at the settlement conferences, Mr. Tulloch is to sign the agreement. ▪ Ms.

Bembridge was directed to tile any further documentation with Mr. Tulloch first and was urged to consult with legal counsel. Both parties were directed to file a letter for the Court in anticipation of the conference scheduled for November 26, 2015. • November 26, 2015 half hour conference. Interim agreement reached on some issues including division of matrimonial property. Interim Consent Variation Order to be filed with the court. Issues yet to be determined included custody, access, child support and special expenses or extraordinary expenses. • February 8, 2016 half hour pre-trial conference.

Motion to strike portions of Ms. Bembridge's Affidavit. Deadline has passed for filing new affidavits. Parties encouraged to discuss issues related to Affidavits offered by both parties. Correspondence received regarding agreement between the parties to strike portions of various Affidavits. TRIAL: • February 23, 2016, (one day) first day of trial 9:53 through to 16:34 (with lunch break). • February 24, 2016 (one day) second day of trial, 10:02 through to 15:40, (with lunch break evidence concluded, adjourned early as Ms.

Bembridge was not prepared to make her submissions. • February 25, 2016 (one hour) third day of trial, 10:00 through to 11:08 submissions by both parties. • 15:06 through to 15:38 (half hour) judge's comments regarding evidence and outline of oral decision to come. • April 21, 2016, 11:53 through to 13:35 (one hour and forty minutes) decision rendered. [ 4 ] Request from Mr. Tulloch for costs of $9,750.00 according to Tariff A, with the addition of $2000.00 for each day of trial, based on a hearing of three and one half days, following a divorce trial proceeding. Total costs requested: $16,750.00.

Decision: [ 5 ] Shelley Leigh Bembridge shall pay costs of $5,000.00 to Mr. Tulloch by May 31, 2017. Reasons: [ 6 ] The parties were married on August 29, 1998. Keigan was born in […]2000 and Rowan was born in […], 2002. The parties began to experience increasing relationship difficulties in 2012. The parties separated in 2013. [ 7 ] In November 2013 the Honourable Justice Mona Lynch granted an order confirming the parties had joint shared care of both Keigan and Rowan with a week on / week off parenting arrangement. Ms. Bembridge was ordered to pay child support to Mr.

Tulloch. [ 8 ] Difficulties arose between Keigan and Ms. Bembridge and an Interim Variation Order was granted in April, 2015. The Order confirmed Keigan was to reside primarily with Mr. Tulloch while Rowan would continue in the shared care of the parties. Child support paid by Ms. Bembridge to Mr. Tulloch was adjusted accordingly. [ 9 ] Mr. Tulloch sought a joint custodial arrangement allowing Keigan to live primarily with Mr. Tulloch with "highly structured" parenting time with Ms. Bembridge. Mr.

Tulloch sought a shared care arrangement with respect to Rowan, (a week on week off shared care situation}. [ 10 ] Ms. Bembridge sought an order for sole custody and decision making for both children. [ 11 ] The Issues to be determined at trial included: (

a) What impact does the agreement have on the determination of the parenting issue? (

b) What principles apply to the parenting determination? (

c) What custodial designation was in the best interests of Keigan? (

d) What custodial designation was in the best interests of Rowan?

(

e) Should a primary care parent be designated for Keigan or for Rowan? (

f) What parenting

schedule was in the best interests of Keigan? (

g) What parenting

schedule was in the best interests of Rowan? (

h) What child support order, if any, should issue? [12] The hearing was scheduled for three days but actual time required was two and a half days. [13] The most significant issue at the hearing was parenting arrangements. [14] In

summary, the court granted an order which included the following conditions, to name a few: (

a) Mr. Tulloch would have primary care and residence for the child Keigan; (

i) Mr. Tulloch would have final decision making with respect to Keigan's education. (

b) Mr. Tulloch and Ms. Bembridge would have shared care of Rowan. (

i) Ms. Bembridge would have final decision making with respect to Rowan's education. (

c) Expectations with respect to Ms. Bembridge's parenting time with Keigan and with Rowan were specified. (

d) Mr. Tulloch was encouraged to consider accepting assistance from Ms. Bembridge (transportation to extra-curricular activitiesfor Rowan and tutoring for either child), and to assist Ms. Bembridge in her attempts to address existing relationship issues with Ms.Bembridge and Keigan, despite Keigan's stated wishes. (

e) The issue of holiday access was addressed. (

f) Mr. Tulloch and Ms. Bembridge were ordered to respect the parenting practices of the other (parallel parenting regime),allowing each party to make day-to-day decisions while either child is in his or her care. (

g) Mr. Tulloch and Ms. Bembridge were ordered to communicate on all other decisions related to Keigan's and Rowan's healthand general welfare. (

h) Ms. Bembridge's income for child support purposes was found to be $78,574.80 and Ms. Bembridge was ordered to pay$884.00 each month, based on a shared care arrangement for Rowan and an arrangement which has Keigan living primarily with Mr.Tulloch. [15] Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. Costs are in my discretion. A decisionnot to award costs must be principled. [16] I may consider a party's ability to pay costs in making a costs award. In M.Q.C. v.

P.L.T., 2005 NSFC 27, Judge Dyer remindedme that some litigants may "consciously drag out court cases at little or no actual cost to themselves (because of public or third partyfunding) but at a large expense to others who must ‘pay their own way’”. If this happens, he said , “Fairness may dictate that thesuccessful party's recovery of costs not be thwarted by later pleas of inability to pay. [See A.E.M. v. R.G.L., 2004 BCSC 65 ].” [17] To apply Tariff A, I must know the amount involved in the case.

According to Tariff A, where there's a substantial non-monetary issue involved, the amount involved is determined having regard to the complexity of the proceeding and the importance of theissues. [18] In both Collins v. Speight, (NS SC), and in Wyatt v. Franklin (NS SC), JusticeGoodfellow concluded that the amount involved in two and one-half day trials was $45,000.00. Collins v. Speight was a case involving adispute over an entitlement to a right of way and Wyatt v. Franklin was a land dispute. Justice Goodfellow described both as not complex.Later, in Toronto Dominion Bank v.

Lienaux, (NS SC), Justice Goodfellow suggested a general rule for cases wherea substantial non-monetary issue was involved. He said that he treated each day or part day of the trial as equivalent to $15,000.00 for thepurpose of determining the “amount involved”. [19] In 2007, Justice Lynch reviewed this general rule in Jachimowicz, 2007 NSSC 303, at paragraph 26. There, the parenting trialtook approximately thirteen days: six days of evidence from the initial trial, five days of review evidence and numerous otherappearances which added approximately two more days.

She adjusted the daily equivalent amount from $15,000.00 to $20,000.00 “toreflect the increased costs of litigation.” [20] In addition to consideration being given with respect to Mr. Tulloch's legal fees I must also keep in mind Ms. Bembridge'sability to pay a cost award given her income and the order requiring her to pay child support. In determining Ms. Bembridge's disposableincome available to pay a costs award it is important to account for child support being paid by her, and deductions from her income fortaxes, CPP, EI, and pension contributions.

In determining a timing for payment of any costs award I have noted that based on Ms.Bembridge's financial documents she has historically received a tax refund in the spring. [21] Civil Procedure Rule 77.02(1) states that I “may, at any time, make any order about costs as [I am] satisfied will do justicebetween the parties.” [22] Mr. Tulloch has requested costs. Mr. Tulloch was the successful party as it relates to the children's custodial arrangements. Ms.Bembridge's request for sole custody of Keigan and Rowan was not sustainable given the evidence available to the Court. Ms.

Bembridge's concerns with respect to her relationship with Keigan and Mr. Tulloch’s perceived responsibility as Keigan's custodial parent needed to be addressed by the Court. [ 23 ] Pursuant to Civil Procedure Rule 77.02(2) I have a general discretion to award costs so as to do justice between the parties. [ 24 ] Having regard to Mr. Tulloch’s success generally, to the complicated parenting issues which arose, the volume of information filed, duration of hearing . I order Shelley Leigh Bembridge to pay Innis Eric Tulloch costs of $5000.00 by May 31, 2017. This amount is inclusive of all disbursements. Cindy G. Cormier, J.S.C.(F.D.)