Reeves v. Stewart, 2017 NSSC 217

SUPREME COURT OF Nova Scotia Citation: Reeves v. Stewart , 2017 NSSC 217 Date: 2017-08-15 Docket: 1204-005237 Registry: Kentville Between: Melisa Ida Reeves Applicant v. Jason Scott Stewart Respondent Judge: The Honourable Justice Gregory M.

Warner Heard: June 29, 2017, at Kentville, Nova Scotia Final Written Submissions: July 26, 2017 Counsel: Melissa Reeves, self-represented applicant Kate Seaman, counsel for the respondent By the Court: [ 1 ] This is a costs decision resulting from an application by Melissa Reeves, initially seeking access to the parties’ daughter Lilly, extension of child support payable by Jason Stewart to their son Alex and enforcement of arrears, as well as termination of her child support obligation for Lilly. [ 2 ] On the same day that Mr. Stewart filed a Notice of Contest (June 21, 2017), Ms.

Reeves filed an Amended Notice of Application in Chambers seeking primary care of Lilly and child support. [ 3 ] The application was dismissed. Background [ 4 ] In December 2011, Ms. Reeves was awarded primary care of the parties’ two children Alex, born 1998, and Lilly born 2001, and Mr. Stewart was ordered to pay child support. [ 5 ] In May 2016, Lilly and Ms. Reeves had a physical altercation. Ms. Reeves removed Lilly from her home. From that time, Lilly wanted nothing further to do with her mother. [ 6 ] Mr. Stewart is a Canadian soldier stationed in Colorado, USA. He intervened.

With financial assistance from the military, he

placed Lilly as a live-in resident at Landmark East School in Wolfville, Nova Scotia, and applied for primary care. A Voice of the Child Report was obtained and a hearing held before Justice Rosinski on November 9, 2016. Justice Rosinski rendered an oral decision awarding primary care of Lilly to Mr. Stewart and confirming Mr. Stewart’s placement of Lilly in Landmark East School as a live-in resident (with an alternative for Lilly to reside in Colorado if the funding was not provided by the Canadian military for Landmark East). He further ordered Ms. Reeves to pay child support for Lilly and ordered Mr.

Stewart to pay child support for Alex. [ 7 ] The oral decision provided for reasonable, unspecified access by Ms. Reeves to Lilly “if Lilly agrees to the requested access”. The order was silent on access until amended by Justice Rosinski after this application was filed. [ 8 ] Ms. Reeves commenced this application on May 10, 2017, as a self-represented litigant. She sought access to Lilly, reinstatement of child support to Alex (which Mr. Stewart had terminated when Alex quit school, but which Justice Rosinski ordered terminated in July 2017 when Alex turned 19 unless Ms.

Reeves could prove Alex was still a child of the marriage), arrears, and termination of her child support obligation for Lilly. [ 9 ] In response to the application, Mr. Stewart, through counsel, offered to settle Ms. Reeves application by continuing child support for Alex, so long as he returned to and stayed in school, with some adjustments. The offer was not accepted. [ 10 ] A hearing was initially scheduled for a general chambers appearance and rescheduled to June 29, 2017, on consent of the parties. On June 21, 2017, Mr. Stewart filed his Notice of Contest, financial disclosure, affidavit and brief.

On the same day, Ms. Reeves filed an Amended Application, with a lengthy supplementary affidavit and a brief seeking primary care of Lilly and child support for her. [ 11 ] Despite the late, substantial change in the application, the hearing proceeded with the consent of Mr. Stewart. [ 12 ] It was very clear from the affidavit filed and the thorough cross-examination of Ms. Reeves by Ms. Seaman that there had been no material change in circumstances from those that existed and were incorporated in Justice Rosinski’s decision seven months earlier. Ms.

Reeves had gradually commenced exercising access with Lilly, with Lilly’s consent. Ms. Reeves also made inappropriate and unrealistic promises, financial and otherwise, to Lilly to encourage access. To the extent that there was a change to circumstances, the application was dismissed as not being in the best interests of Lilly. Submissions [ 13 ] Mr. Stewart submits that this is one of the rare and exceptional circumstances where the court should show disapproval of Ms. Reeves conduct and award solicitor / client costs. [ 14 ] Mr.

Stewart was completely successful at the hearing, had tried to settle the matter in a reasonable manner when he was served with the application and had responded to a significant amendment to the application supported by a lengthy affidavit at the last minute. His actual legal costs were $6,100.00 plus HST and disbursements for a total estimated by the court of $7,500.00. [ 15 ] Alternatively, he seeks enhanced Tariff A (Tariff A, Scale 3) of $5,000.00 based on the legal principles set out in Gagnon v Gagnon , 2012 NSSC 137 (“ Gagnon” ). [ 16 ] Ms.

Reeves says that her application was reasonable because the Order arising from the November proceeding was silent regarding her access, a matter for which Ms. Seaman took responsibility. Ms. Reeves did not refer to the fact that the order flowing from the November 2016 was amended after she made her application to incorporate access, nor that Mr. Stewart had offered to resolve her application and she declined his offer. Analysis [ 17 ] Mr. Stewart was completely successful in the application. [ 18 ] I decline to award solicitor / client costs, as they are reserved for rare and exceptional circumstances.

In this case, Ms. Reeves was self-represented. Her application was misguided and, at best, premature. The matter should have been resolved before Mr. Stewart was required to attend at court from Colorado. Her late, substantial amendment seeking primary care had no merit whatsoever. Much of what she had advanced had been before the court in 2016. It was likely because Ms. Reeves was self-represented, and not through intentional malfeasance, that she persisted in an unreasonable application. [ 19 ] Costs awards are governed by Civil Procedure Rule 77 .

The presiding judge is directed to make any order about costs that will do justice between the parties. Costs of a proceeding follow the result unless a judge orders otherwise. [ 20 ] Tariff C normally applies to costs payable following an application heard in Chambers. The range for a hearing of more than one-half day and less than one day is between $1,000.00 and $2,000.00.

The tariff specifically provides that where an application is determinative of a proceeding (which it was in this case), the judge may multiply the range amounts by 2, 3 or 4 times depending upon the complexity of the matter, the importance of the matter to the parties, and the amount of effort involved in preparing for and conducting the application. All three of these considerations support application of a multiple in this case. [ 21 ] There are several recent decisions of the Family Division respecting costs in family proceedings which apply Tariff A.

Those have been reviewed by this court in a recent decision, Lake v Lake , 2016 NSSC 255 (“ Lake ”). [ 22 ] I prefer to apply Tariff C, but I agree with Justice MacLeod-Archer in Chisholm v Chisholm , 2016 NSSC 325 , that costs results should not vary significantly as between awards under Tariff C or Tariff A for similar proceedings. [ 23 ] For at least 20 years, awards of costs in civil litigation in Nova Scotia have been generally determined on the principle that the successful party should receive a substantial, but not complete, reimbursement of reasonable solicitor – client costs. (See: Landymore v Hardy , 1992 NSSC 70 , and Williamson v Williams , 1998 NSCA 195 )

[ 24 ] Traditionally costs in family matters did not follow the same principles as other civil matters. That approach has changed in recent years as reflected by the Gagnon decision.

Recent case law demonstrates that the substantial, but not complete, reimbursement of reasonable solicitor / client costs applies to family proceedings. [ 25 ] In addition, as noted in the Access to Justice Report , judges are encouraged to use costs award more freely and assertively in family matters to contain the process and encourage reasonable behaviour. [ 26 ] In this decision, I incorporate my analysis in Foreman v Stanley, 2015 NSSC 311 ; Lake supra; and Redmond v Redmond, 2016 NSSC 350 . [ 27 ] It appears from the documents filed in this proceeding that Mr.

Stewart’s income is approximately $75,000.00 per year and Ms. Reeves’s income is approximately $55,000.00 per year. Ms. Reeves was self-represented; Mr. Stewart spent approximately $7,500.00 successfully defending this misguided and premature application. [ 28 ] Some aspects of the original application were not unreasonable. The request to formalize access in the order and to seek continuation of Alex’s child support on the condition that he return to or remain in school were not inappropriate. But, the matter should have stopped shortly thereafter, based on Mr. Stewart’s offer.

Instead, the matter was escalated by a last-minute request for primary care of Lilly. [ 29 ] The court is satisfied that the itemization of time and charges in the account to Mr. Stewart are reasonable. Mr. Stewart should have substantial, but not complete, indemnification of his costs in successfully defending this application. It is noteworthy that Ms. Reeves did not incur any legal costs. [ 30 ] Ms. Reeves shall pay costs of this application to Mr. Stewart in the amount of $4,000.00. Warner, J.