Wighton v. Wighton, 2019 NSSC 75

SUPREME COURT OF Nova Scotia Citation: Wighton v. Wighton , 2019 NSSC 75 Date: 20190228 Docket: 1204-006714 Registry: Kentville Between: Susan Violet Wighton Petitioner v. Stewart Cameron Wighton Respondent Judge: The Honourable Justice Gregory M. Warner Heard: January 23, 2019, in Kentville, Nova Scotia Date of Last Submission: February 22, 2019 Counsel: Rachel Taylor, counsel for the petitioner John MacMillan, counsel for the respondent By the Court: [ 1 ] This is a cost decision following a one-day divorce, heard on January 23, 2019.

Background [ 2 ] The parties were married in 1989 and separated in October 2017. The parties are in their 50s and have no children. They lived in Ontario then moved to Nova Scotia in 2011 to be near the petitioner’s family. Both worked outside the home in Ontario and Nova Scotia. [ 3 ] The petitioner worked mostly in the restaurant industry. For many years, she has also been in receipt of workers’ compensation benefits from Ontario totalling about $23,000.00 per year, and employment income of about $14,000.00.

The day before the divorce trial (January 23, 2019), the petitioner was laid off when the restaurant she worked for closed. [ 4 ] The respondent had a variety of jobs while the parties lived in Ontario and after they moved to Nova Scotia. He presently works seasonally with a garden centre and convenience store, earning about $21,000.00 per year. [ 5 ] The parties’ major asset is an old farmhouse in need of repair. History of Proceeding [ 6 ] The petitioner commenced this divorce proceeding and filed a motion for interim exclusive possession of the matrimonial home in January 2018.

The respondent filed his own motion for interim exclusive possession / spousal support. [ 7 ] In an oral decision on February 28, 2018, the court determined that the respondent’s income was then approximately $24,000.00. The court grossed up the petitioner’s tax-free workers’ compensation income from $23,000.00 to $37,000.00. The court granted the respondent interim possession of their home, ordered the parties to continue to pay the mortgage equally, and awarded the respondent interim minimal spousal support of $409.00.

The court retained jurisdiction to determine costs of the motion on determination of the court. [ 8 ] A settlement conference and trial were scheduled. The settlement conference scheduled for October 29, 2018, was cancelled

when the respondent was unable to participate due to illness. The trial was scheduled for December 28 th , 2018. [ 9 ] On December 28 th , the court noted that neither party had provided essential up-to-date income information. The trial was adjourned to January 23, 2019 for further financial disclosure from both parties. [ 10 ] When the trial resumed on January 23 rd , counsel read into the record a settlement of all their property issues.

Under the property settlement, the respondent retained the home subject to a mortgage, their personal property was divided equally, and the respondent agreed to pay an equalization payment of $6,500.00. The only outstanding issue was spousal support. [ 11 ] In his pretrial submissions, the respondent claimed spousal support between $911.00 and $1,014.00 per month indefinitely, but subject to review at age 65.

The petitioner submitted that no spousal support should be payable or, alternatively, it should be payable for one year at the lowest end of the SSAG range. [ 12 ] Petitioner’s counsel made submissions at the opening of the trial to admit into evidence a letter dated January 22, 2019, that the petitioner’s employment was terminated because the restaurant was closing.

Also, she provided the respondent’s counsel with a previously undisclosed letter dated March 18, 2018, from her doctor requesting that her work days be reduced to two days per week by reason of elevated stress and other pain issues. [ 13 ] The court found that the respondent had established entitlement, primarily on a non-compensatory basis. The court calculated the SSAG range was between $599.00 at the low end and $737.00 at the high end. The court awarded the respondent spousal support of $500.00 per month until he attained the age of 65. He was 57 at the time of the hearing.

Cost Submissions [ 14 ] The petitioner submits that she is entitled to costs of $9,000.00, primarily on the basis that: 1. The respondent failed to provide his full tax returns and notices of assessment (except his 2016 notice of assessment) until January 16, 2019, and only provided his banking records and other financial records relevant to the property issues on November 30, 2018. 2. Additional legal expenses related to the cancellation of the October settlement conference by reason of his illness were incurred by her. 3.

The delay in disclosure until shortly before the trial delayed earlier resolution and added to pretrial legal costs. [ 15 ] The petitioner cited this court’s decision in Kalkman v Beveridge , 2018 NSSC 178 (“ Kalkman ”), at para. 49 , where the court took into consideration in awarding costs that a costs award should be used to contain processes and encourage reasonable behaviour. [ 16 ] The respondent submits that he was completely successful at the interim exclusive possession / spousal support motion and mostly successful at trial.

He acknowledged that the settlement conference was cancelled because of his illness but says that the illness was real and not a basis to award costs to the petitioner. [ 17 ] The respondent acknowledged delays in obtaining third-party records and tax returns from Revenue Canada but notes that the December 28 th trial date was adjourned because of missing disclosure from both parties. [ 18 ] He refers the court to the 12 factors set out in Gagnon v Gagnon , 2012 NSSC 137 (“ Gagnon ”), at para. 2 for the appropriate costs’ analysis. [ 19 ] The respondent seeks costs for the successful interim exclusive possession / spousal support motion per Tariff C in the amount of $1,000.00. [ 20 ] With respect to the trial, he submits that Tariff A applies, and the spousal support awarded amounts to an equivalent judgment of approximately $40,000.00.

Tariff A , Scale II, suggests costs of $6,250.00 plus $2,000.00 for a one-day trial. [ 21 ] He then submits that the $8,250.00 should be reduced to $6,000.00, on the basis that his actual legal costs were about $13,000.00 and, while mostly successful, he was not entirely successful at trial. Counsel acknowledges that the petitioner has limited means to pay costs but notes that the respondent owes her an equalization payment of $6,500.00. Analysis [ 22 ] Costs awards are governed by CPR 77 .

Many of the considerations relevant to this case, and the court’s analysis of costs awards in family matters, are set out in Lake v Lake , 2016 NSSC 255 (“ Lake ”). I also incorporate as relevant and applicable the 12 factors described by Justice MacDonald in Gagnon . [ 23 ] The successful party is generally entitled to costs. Success is measured by the position of the parties at the time of the proceedings. [ 24 ] The respondent was substantially successful in the interim exclusive possession and spousal support motion in February 2018.

Subject to the comments hereinafter, that entitles him, pursuant to Tariff C , to an award of $1,000.00. [ 25 ] The respondent was more successful than the petitioner at trial on the only issue - spousal support. The petitioner sought to pay no spousal support or, alternatively, minimum support for one year. The respondent sought about $1,000.00 per month on an indefinite basis with a review when he turned 65. The respondent was awarded $500.00 per month until he attained the age of 65, when spousal support entitlement would be exhausted.

[ 26 ] The approximate present day value of the income stream awarded to the respondent at trial is about $30,000.00. Application of Tariff A, Scale II, to a $30,000.00 award would result in an award of $6,250.00 plus $2,000.00 for one day trial. [ 27 ] But for other considerations dealt with below, the successful respondent would be entitled to tariff costs of $9,250.00. [ 28 ] Two considerations affect the analysis and should result in a reduction of tariff costs. [ 29 ] First, costs awards are intended to do justice between the parties. [ 30 ] In this case, neither party has an ability to pay costs.

The petitioner’s income is about $40,000.00, and the respondent’s income is about $21,000.00. Both appear to have health issues and, because of their advancing ages, are likely to have no more income than at present. Neither party has any significant assets. The respondent’s modest home in need of repair was valued at $90,000.00 with a mortgage outstanding of $76,000.00, and each party assumed other debts. [ 31 ] Because the respondent was most successful at the interim hearing and at trial, he is entitled to costs.

Because of the petitioner’s very limited means to pay, justice requires that the cost entitlement of the respondent be reduced. [ 32 ] A second consideration relates to financial disclosure. [ 33 ] The respondent was not derelict respecting disclosure for the interim hearing. [ 34 ] While the original trial date was adjourned by reason of the absence of relevant and reliable financial disclosure from both parties, the respondent was otherwise never on time with disclosure.

The property settlement was made on the eve of the trial by reason of his late disclosure, which had been frequently requested by the petitioner. Less affected by his inattention to disclosure respecting the spousal support issue.

Neither party provided timely financial disclosure until shortly before the trial. [ 35 ] The respondent is entitled to costs, but the costs award should be reduced to the extent that he was not diligent in providing the disclosure that may have led to earlier resolution of the proceeding or, in the likely event that spousal support would not be resolved by agreement, an earlier decision respecting spousal support, all of which may have saved both parties legal costs. [ 36 ] In conclusion, the parties are financially strapped.

The respondent was more responsible for the delay in the determination of the issues than the petitioner. Normal Tariff costs to which the respondent would be entitled amount to $9,250.00. Justice requires that this amount be reduced by one-half to $4,625.00. [ 37 ] The court awards costs of $4,625.00. If the equalization payment of $6,500.00 has not yet been paid, costs are set-off against the equalization payment. Warner, J.