Myette-Poirier v. Poirier, 2020 NSSC 184

SUPREME COURT OF Nova Scotia Citation: Myette-Poirier v. Poirier , 2020 NSSC 184 Date: 20200611 Docket: 1204-007079 Registry: Kentville Between: Denise Myette-Poirier Appellant v. William Poirier Respondent DECISION ON COSTS Judge: The Honourable Justice Glen G. McDougall Heard: February 27, 28 and March 3, 2020, in Kentville, Nova Scotia Counsel: Michelle Axworthy, for the Appellant William Poirier, Self-Representative for the Respondent By the Court: Introduction [ 1 ] The Applicant and the Respondent were married on July 17, 2010. They were blessed with two children.

Their first child was born in June, 2011 and the second in October, 2012. Unfortunately, the parties resolved to separate on August 5, 2019. [ 2 ] Following separation, the parties successfully concluded an Agreement and Minutes of Settlement which were filed with the Nova Scotia Family Court on December 16, 2019. The conditions that lead to the agreement deteriorated rather quickly.

This prompted the Applicant to file a Petition for Divorce accompanied by a Motion seeking interim relief that would require the Respondent to exercise supervised access to his children until such time as the results of a mental health assessment of him could be provided. [ 3 ] An application filed by the Respondent in the Nova Scotia Family Court at around the same time was dismissed for lack of jurisdiction. [ 4 ] The interim hearing scheduled before me was set down for one-half day.

The first appearance was consumed with argument regarding the Respondent’s attempt to offer vive voce evidence from several proposed witnesses rather than filing affidavits as he should have. [ 5 ] The Respondent refused to accept a Department of Community Services recommendation for supervised access and so the matter was put over to the earliest possible date. A full day was set aside for this purpose. A significant amount of that day was spent in cross-examination of the Applicant by the self-represented Respondent.

He also used considerable time cross-examining the author of the Department of Community Service’s Report that recommended he undergo a mental capacity assessment with supervised access until such time as a report could be obtained. The Respondent should not be criticized for cross-examining the Applicant or the Department of Community Services’ representative. But perhaps because of his lack of legal training and emotional attachment to the file, the time taken to carry out this questioning took a lot longer than it should have. Certainly, counsel for the Applicant, on several occasions,

raised concerns about the time it was taking to conclude cross-examination of her client. The Court was similarly concerned but was prepared to give Mr. Poirier some additional latitude since he was acting on his own behalf. But, there is a price to pay particularly in this case as the Applicant was completely successful in achieving the results she was asking for, a result that was in the best interests of the parties’ two children. Position of the parties [ 6 ] Counsel for Ms. Myette-Poirier seeks costs of $20,000.00. As support for her position, she cites the Nova Scotia Court of Appeal decision in Armoyan v.

Armoyan , 2013 NSSC 136 . [ 7 ] Counsel for the Applicant also referred to the decision of the Honourable Justice Beryl MacDonald in Fermin v. Young , 2009 NSSC 222 . In her Brief dated March 20, 2019 (sic), Ms. Myette-Poirier’s counsel pointed out that “Mr. Poirier was unrepresented at the interim hearing, and incurred minimal legal expenses, however, his position and management of the litigation resulted in significant legal fees to Ms.

Myette-Poirier.” – I agree. [ 8 ] In presenting her client’s case for costs, she looked at three different approaches to illustrate how the Court might decide what the appropriate amount should be. Using those three different approaches, the following amounts were offered: 1. Tariff C Approach - $6,000.00 + disbursements of $1,016.21 = $7,016.21 2. Rule of Thumb Approach - $13,250.00 + disbursements of $1,016.21 = $14,266.21 3. Armoyan Approach – Ranged from $19,970.35 to $24,072.10 (includes disbursements) [ 9 ] Although unrepresented at the hearing, Mr.

Poirier retained legal counsel to deal with the issue of costs. In her Brief to the Court, she recommended that there should be no award of costs because the Applicant took an unreasonable position during pre-hearing discussions that forced her client to proceed with the hearing. Although, she herself was not involved in those discussions, she suggested that her client “did everything he could in order to avoid a 3-day interim hearing.” She is obviously relying on what her client must have told her regarding the nature of these discussions. Perhaps if Mr.

Poirier had retained counsel sooner, the need for the hearing could possibly have been avoided but that is not what happened. [ 10 ] In the event that cost are awarded, counsel suggests, as an alternative, that the Court should order Tariff C costs based on two days of court time and not three as counsel for the Applicant suggested.

This would reflect the fact that most of the time on the first day was eaten up while the parties tried to reach a negotiated settlement which, unfortunately, did not happen. [ 11 ] As further support for her client’s position and to attack the “Armoyan” approach suggested by opposing counsel, Mr. Poirier’s counsel argues that the $20,000.00 sought by the Applicant is “blatantly unreasonable and should be reduced.” She further argues that the legal fees incurred by the Applicant should be reduced for the time her counsel spent preparing for and attending the Nova Scotia Family Court to have Mr.

Poirier’s application dismissed for lack of jurisdiction in the face of the Interim Motion already filed in this Court. Counsel suggests a further reduction for costs associated with time spent on Ms. Myette-Poirier’s file after the hearing. Presumably this is time devoted to preparing written submissions on costs and preparation of the Order to reflect my decision. I do not agree with Mr. Poirier’s counsel’s suggestion that this should be set aside for now to await the final outcome.

Such time and expense is a reasonable extension of the work required to complete the interim matter and, as such, should be taken into consideration [ 12 ] Using the reduced time and decreased/legal fees resulting from that, Mr. Poirier’s counsel submits that, if the Court does decide to order costs against her client, the award should be $4,000.00 plus disbursements of $409.91 for a total of $4,409.91 under Tariff A, Scale 2.

But, if the Court is persuaded to use the “Armoyan” approach suggested by the Applicant’s counsel, the amount of costs the Respondent should be ordered to pay is: 66% of $18,216.00 = plus disbursements of $409.91 for a total of $12,432.47. Court Decision [ 13 ] Costs are in the discretion of the Court but are generally awarded to the successful party. In so far as anyone can be considered successful in a matrimonial dispute, I see no reason to deny Ms. Myette-Poirier costs representing a substantial contribution towards her reasonable expenses.

She has incurred significant legal costs, costs that are considerably more than what one would normally expect for an interim hearing originally scheduled for one-half day but one that stretched over nearly three. Most of the additional time needed to complete the hearing can be attributed to the Respondent. This was not simply due to his lack of familiarity with legal procedure, although that certainly played a role, it was caused more by his inability to focus on what was relevant despite repeated reminders from the Court to move things along. This is not meant to suggest that he was not polite or courteous.

For the most part he was. But it seemed, at times, that he wanted to drag out proceedings as long as he could. This was the main reason the hearing took so long to conclude. And, unfortunately, that only added to the legal costs incurred by the Applicant. While mindful of the actual fees and disbursements billed to her, I am not prepared to order costs based on either “The Rule of Thumb Approach” or the “Armoyan Approach” advanced by counsel for Ms. Myette-Poirier. Instead, I think resort to Tariff C of Civil Procedure Rule 77 is the correct approach.

At the rate of $2,000.00 per day for three days, together with disbursements of $1,016.21, the total amounts to $7,016.21. The Respondent shall have six months from the date of release of this decision to pay the full amount. Glen G. McDougall, J.