Mahaney v. Malone, 2014 NSSC 146

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Mahaney v. Malone, 2014 NSSC 146 Date: 20140423 Docket: 1202-060579 Registry: Halifax Between: Thomas Russell Mahaney Petitioner v. Andrea Gail Malone Respondent Judge: The Honourable Justice Beryl A. MacDonald Final Written Submissions: February 28, 2014 from Julia E. Cornish, Q.C. March 5, 2014 from Terrance G. Sheppard Counsel: Terrance G. Sheppard, for the Petitioner Julia E.

Cornish, Q.C., for the Respondent By the Court: [1] On December 6, 2013, I completed a written decision (reported as Mahaney v Malone, 2013 NSSC 400) following a one dayvariation hearing commenced by Mr. Mahaney who requested shared parenting with no requirement for either parent to pay child supportto the other. After providing my written decision I received submissions in respect to costs. I have evaluated those submissions. [2] When deciding whether to award costs the Civil Procedure Rules provide guidance as do several decisions, including Landymore v.

Hardy (1992), (NS SC), 112 N.S.R. (2d) 410 (T.D.); Campbell v. Jones et al. (2001), 2001 NSSC 139, 197 N.S.R. (2d) 212 (T.D.); Grant v. Grant (2000) , 2002 NSSF 2 , 200 N.S.R. (2d) 173 (T.D.); Bennett v. Bennett(1981), (NS SC), 45 N.S.R. (2d) 683 (T.D.); Kaye v. Campbell (1984), (NS CA), 65 N.S.R. (2d)173 (T.D.); Kennedy-Dowell v. Dowell 2002 CarswellNS 487; Urquhart v. Urquhart (1998), (NS SC), 169 N.S.R.(2d) 134 (T.D.)); Jachimowicz v. Jachimowicz (2007), 2007 NSSC 303 , 258 N.S.R. (2d) 304 (T.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 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 $20,000.00 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 “reasonable expenses” are, 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. [4] Ms. Malone seeks costs as the successful party. Mr. Mahaney suggests there has been divided success. [5] After receiving the variation application Ms.

Malone filed a response in which she requested sole custody as a means by which to clarify the provisions in the previous order in respect to decision making, a revision to the summer parenting

schedule and contribution toward some of the children’s extracurricular expenses. Very little reference was made in the parties’ documentation about the summer

schedule and contribution toward extracurricular expenses. What did consume considerable written response was the review of the parties’ communications and interactions since the date of the last order and that material convinced me conflict between the parties had not been resolved. The material was presented in the context of Ms. Malone’s request for sole custody but also to explain that nothing had changed since the last time the parties were in court. [6] The issue about decision making could have been easily resolved if, after receiving Ms. Malone’s response to his application, Mr.

Mahaney had acknowledged that the wording of the April 29, 2009 Order did give Ms. Malone final decision making authority. He did not do so until the morning of the hearing. [7] The requested change in the summer

schedule and contribution toward extracurricular expenses were primarily dealt with in submissions. They were not the reason why this matter went forward to a hearing. I did clarify the wording to be used to reflect the decision making authority to be exercised by Ms. Malone. I did not change the summer parenting

schedule or order Mr. Mahaney to contribute to extracurricular expenses but I do not consider Ms. Mahaney’s failure to succeed on these issues to support the suggestion she was not the successful party in this proceeding. [8] This matter returned to court because Mr. Mahaney failed to recognize the pressure his behavior put upon his son to remain in his home at times not approved in the court order. His lawyer, in the costs submissions, suggests Mr. Mahaney only commenced this legal proceeding because “he found himself three years later with a fourteen year old son who was insistent on staying with him on Tuesdays and a daughter who expressed the desire to follow the same

schedule as her brother.” This submission is directly contrary to my findings at trial. Mr. Mahaney did not convince me his son was “insistent on staying with him”. It was my conclusion that even if the children had expressed preferences “their wishes cannot be considered to be ‘independent’ or ‘mature’”. [9] Counsel for Mr. Mahaney suggests Ms. Malone made no settlement offers and rejected attempts to settle the matter. Mr. Mahaney’s offers were based upon moving to a shared parenting arrangement and Ms. Malone did not agree this was appropriate. I agreed with her.

His offer in respect to sharing some of the hockey and gymnastics expenses may have advantaged her but her rejection of his offer does not justify a finding she is disentitled to receive costs. [10] Mr. Mahaney complains about the failure of Ms. Malone to disclose certain text messages prior to the hearing and suggests that had they been disclosed the "matter may have settled prior to trial". Because these text messages were communications between Ms. Malone and Mr. Mahaney he knew or should have known that they existed and he clearly was familiar with their content. These were but

one piece of evidence I examined in arriving at my conclusion that the conflict between the parties continued. It was Mr. Mahaney's contention that there was no conflict. I do not consider Mr. Mahaney to have been "ambushed at trial" because of the use by Ms. Malone of these text messages to impeach Mr. Mahaney's credibility. [11] Counsel for Ms. Malone is seeking a cost award in the amount of $12,000.00 which is more than the $6,000.00 that would be awarded pursuant to “Tariff A” of the Civil Procedure Rules at the basic scale with the add-on for one day of trial.

She argues that this is not a significant contribution toward her legal expenses of $16,000.00. Mr. Mahaney argues that any cost award, and particularly one in the amount of $12,000.00, would cause him significant financial hardship. His present partner and the four children of his household are financially dependent upon him. I do not know whether two of the four children he mentions are the children involved in this proceeding.

Nevertheless he does presently pay child support for his two children and it does appear he has other dependents who have no independent income of their own. [12] After a one-day hearing in 2007 I awarded costs to Ms. Malone in the amount of $3,375.00. After a two-day hearing in 2009 Justice Williams awarded costs to Ms. Malone in the amount of $4,500.00. I am not satisfied that this case requires a departure from the amount that would be provided by the Tariff. Costs are awarded to Ms. Malone in the amount of $6,000.00. Beryl A. MacDonald, J.