Tingley v Tingley, 2016 NSSC 144

SUPREME COURT OF Nova Scotia Citation: Tingley v Tingley , 2016 NSSC 144 Date: 2016-05-27 Docket: 1204-006219 Registry: Kentville Between: Walter Scott Tingley Petitioner v. Cristiana Anne Tingley Respondent Judge: The Honourable Justice Gregory M.

Warner Heard: April 18, 2016, in Kentville, Nova Scotia Final Written Submissions: May 19, 2016 Counsel: Walter (Scott) Tingley, self-represented petitioner Kerri-Ann Robson, counsel for the respondent By the Court: [ 1 ] This costs decision relates to a divorce hearing and oral decision that consumed one full day on April 18, 2016. [ 2 ] The parties, now aged 36 and 29, commenced cohabitating in October 2008, married in September 2009 and separated after six-and-a-half years of cohabitation in April 2015. They have no children. [ 3 ] Before they met, Mr. Tingley owned a duplex, RSPs and a vehicle. Ms.

Tingley had minimal assets. Mr. Tingley worked throughout, for the most

part in Alberta and recently in Nova Scotia. Ms. Tingley worked intermittently. Mr. Tingley was the primary bread winner. [ 4 ] For six months after separation, Mr. Tingley paid interim spousal support. In September 2015, the parties entered an interim consent order continuing Ms. Tingley’s possession of the matrimonial home (one half of the duplex in Nova Scotia) until October 30, 2015, and fixed interim spousal support in the amount of $675.00 a month. By then Mr. Tingley had paid $810.00 for six months.

[ 5 ] Ms. Tingley had counsel throughout these proceedings. After the interim order, Mr. Tingley became self-represented. [ 6 ] The issues at trial were spousal support and property division. The parties agreed to a division of Mr. Tingley’s pension entitlement at source. [ 7 ] The court’s analysis of whether either party ‘won’ at trial involves a review of the positions in their written pre-trial briefs, and the exchange without prejudice pre-trial offers related in their costs submissions. [ 8 ] In her pre-trial brief, Ms.

Tingley acknowledged receipt of interim periodic support for one year of $9,150.00 and sought spousal support at the mid-range of the Spousal Support Advisory Guidelines of $457.00 per month for three more years (until April 2019). She further asked that she retain her vehicle; Mr. Tingley retain the duplex, his RSPs and a line of credit debt then pay her, to equalize their assets, $89,465.40. [ 9 ] In his pre-trial brief, Mr. Tingley claimed that the payment of the interim spousal support to the date of trial satisfied Ms. Tingley’s entitlement to spousal support.

He further sought an unequal division of property, based on their short-term marriage and their source (him, pre-cohabitation). Specifically, he would keep the duplex, his RSPs and the line of credit debt; Ms. Tingley would keep her vehicle; and, he would pay her $25,650.59. [ 10 ] In their costs submissions, Ms. Tingley says they exchanged without prejudice offers. Mr. Tingley says that he initiated the process and only ever received one offer from Ms. Tingley, one week before trial. [ 11 ] Ms.

Tingley’s offer was that she receive no spousal support, the pension be divided at source, she keep her vehicle, he keep his assets, and she receive an equalization payment of $53,350.00. Mr. Tingley gave Ms. Tingley two alternative offers: one that he pay no further spousal support, that the pension be divided at source, that Ms. Tingley keep her car and receive $28,350.00 cash; or, alternatively, that she receive no spousal support, his pension not be divided at source, that Ms.

Tingley keep her car, and she receive $33,350.00 cash. [ 12 ] In the court’s oral decision of April 18, 2016, prospective spousal support was awarded to Ms. Tingley at the rate of $268.50 per month for three years to April 1, 2019. The amount awarded was actually $392.00 per month (the lower end of the Guideline range) less credit on recalculation of pre-trial spousal support. The gross prospective award was $9,666.00. [ 13 ] The court divided Mr. Tingley’s pension at source, as agreed. The court ordered that Mr. Tingley keep the duplex, his savings and the line of credit debt; that Ms.

Tingley keep her vehicle; and, that he pay her $28,832.50 (an unequal property division). [ 14 ] Ms. Tingley says she paid legal fees of $6,800.00 before trial and owes more for the trial. Mr. Tingley says he paid legal fees of $11,061.18 before becoming self-represented. [ 15 ] The principles governing the award of costs are not complex and discernable from Civil Procedure Rule 77 and the case law. The parties refer the court to Gagnon v Gagnon , 2012 NSSC 137 and Godin v Godin , 2014 NSSC 46 .

The parties do not appear to dispute the applicable principles. [ 16 ] Costs are at the discretion of the court but for the purpose of doing justice between the parties ( CPR 77.02 ). The successful party is generally entitled to costs ( CPR 77.03(3) ). The conduct of parties and their circumstances, especially in respect of parenting obligations, may affect the quantum of costs.

A costs award should generally represent a substantial, but not complete, contribution to the successful party’s reasonable legal expenses. [ 17 ] The starting point for an award of costs is to determine whether there was a ‘winner’ and, if so, who was successful at trial. Both parties think they were more successful than the other. Success is in the eye of the beholder. In my view, there was no winner. [ 18 ] Respecting spousal support, Ms. Tingley sought, in addition to the $9,180.00 paid before trial, $457.00 a month for three years or $16,452.00 before tax considerations. Mr.

Tingley sought no further spousal support. The court awarded an additional gross sum, before tax adjustment, of $9,666.00. [ 19 ] The pension division was not a dispute. [ 20 ] Respecting property division, Ms. Tingley kept her vehicle and received an equalization payment, pursuant to s. 13 of the Matrimonial Property Act , of $28,832.50. This is opposed to the claim in her pre-trial brief of an equal division in the amount of approximately $89,000.00. [ 21 ] Ms.

Tingley’s claim in her without prejudice pre-trial offer of no spousal support and an equalization payment of $53,350.00 is about $17,000.00 more than what she was awarded. On the other hand, Mr. Tingley’s offer of $28,350.00 was very close to the court’s equalization payment, but his offer was based upon no further spousal support. [ 22 ] The court’s decision, taken as a whole, gave Ms. Tingley substantially less than the claim in her pre-trial brief, but not substantially less than her without prejudice offer. She lost the unequal division ( Matrimonial Property Act , s. 13) argument.

The decision was close to Mr. Tingley’s claim and pre-trial offer respecting property, but he lost the spousal support argument. [ 23 ] Since success is the starting point of who should be awarded costs, when neither party was successful, no costs should be awarded. [ 24 ] Other factors are relevant to determining how much costs should be awarded to the successful party. I do not have to go there. [ 25 ] As is more than often the case than not, there was no winner. I exercise my discretion to award no costs to either party.

Warner J.