Cameron v. Cameron, 2014 NSSC 325

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Cameron v. Cameron, 2014 NSSC 325 Date: 2014-09-05 Docket: 1206-6215 Registry: Sydney Between: Sandra Lynn Cameron Petitioner v. Aubrey Gerard Cameron Respondent Judge: The Honourable Justice Theresa Forgeron Heard: Costs submissions received June 30, July 7, and July 10, 2014. Costs Decision: September, 5, 2014 Counsel: Lloyd Berliner, Counsel for Sandra Cameron Darlene MacRury, Counsel for Aubrey Cameron By the Court: [ 1 ] Introduction [ 2 ] This court determined corollary relief issues between Mr. and Ms.

Cameron in its decision reported at 2014 NSSC 224 . The determination of costs remains outstanding. Ms. Cameron seeks substantial costs, while Mr. Cameron proposes that each party bears their own costs. [ 3 ] Issue [ 4 ] Should costs be awarded? [ 5 ] Analysis [ 6 ] Position of Ms. Cameron [ 7 ] Ms. Cameron puts forth a three-fold position. First, she seeks solicitor client costs in an amount to be determined; in the alternative, she seeks costs in the amount of $30,000, plus taxes and disbursements; and in the further alternative, she seeks costs in the amount of $24,938. Ms.

Cameron states that costs must be awarded for the following reasons: • Ms. Cameron was substantially successful at trial. • Mr. Cameron failed to meet disclosure obligations. Disclosure requirements were first itemized at a date assignment conference on February 25, 2013, which were later confirmed by a written memorandum. A second pretrial conference was required because of Mr. Cameron’s noncompliance, during which time the court again directed Mr. Cameron to provide the requisite disclosure. • Mr.

Cameron argued unsubstantiated and unsustainable positions throughout, including his contention that the elder child resided primarily in Sydney, despite the lack of evidence. Further, Mr. Cameron maintained that he was denied access to the trailer despite evidence to the contrary, and the finding of the court.

• Mr. Cameron took active and considered steps to frustrate the proceeding, including his unreasonable denial of access to Ms. Cameron to the matrimonial home to collect personal items, and for an appraiser to assess the value of the home. A telephone conference with the court was necessitated to have the home appraised. • Mr. Cameron refused to disclose the value of the CIBC mutual fund as of the date of separation. Mr. Cameron refused to supply proof of the cash surrender value of his life insurance. Other disclosure, although eventually released, was provided in an untimely manner. • Mr.

Cameron did not provide evidence to support his various positions and was evasive. Counsel spent considerable time unravelling the complications arising from Mr. Cameron’s failure to disclose and to be forthright. • In contrast, Ms. Cameron provided clear, convincing and cogent evidence as noted throughout the decision. Ms. Cameron’s evidence was accepted over the submissions of Mr. Cameron for the most part. [ 8 ] Position of Mr. Cameron [ 9 ] Mr. Cameron suggests that each party bear their own costs. In support of his position, Mr.

Cameron notes as follows: • Most of the contentious issues were resolved during a settlement conference, including the division of matrimonial assets, and ongoing child support. Trial issues were therefore limited in scope. • Ms. Cameron was not successful on all litigated matters, including the valuation of the trailer and

section 7 expenses. • Although Mr. Cameron did not provide figures to confirm the cash surrender value of the life insurance, he did, nonetheless, agree in principle that the value should be equally divided. • No settlement offers were exchanged. • The amount involved is less than $25,000 because the parties agreed to an equal division of the majority of the assets. Litigated issues included child support for a period of eight months,

section 7 expenses, occupation rent, the valuation of the trailer and household contents, and an adjustment of the debts. • Mr. Cameron must pay ongoing financial support for both children of the marriage, inclusive of

section 7 expenses. A cost award would detract from his ability to do so. [ 10 ] Law [ 11 ] Rule 77 governs awards of costs in matters before the Supreme Court of Nova Scotia. In Armoyan v. Armoyan , 2013 NSCA 136 , Fichaud, J.A., reviewed the principles to be applied when determining costs.

The following relevant points stem from that decision: • The court's overall mandate is to "do justice between the parties": para. 10. • Solicitor and client costs are engaged in "rare and exceptional circumstances as when misconduct has occurred in the conduct of or related to the litigation": para. 11. • Unless otherwise ordered, party and party costs are quantified according to the tariffs.

The court has discretion to raise or lower the tariff costs applying listed factors, which include unaccepted written settlement offers, and the conduct of the parties insofar as it affects the speed or expense of the proceeding: paras. 12 and 13. • The Rule permits the court to award lump sum costs and depart from tariff costs in specified circumstances.

Tariffs are the norm and there must be a reason to consider a lump sum: paras. 14 and 15. • The basic principle is that a cost award should afford a substantial contribution to the parties' reasonable fees and expenses which means not a complete indemnity, but rather more than 50 and less than 100% of a lawyer's reasonable bill for services: para. 16. • The tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventional case whose circumstances conform generally to the parameters assumed by the tariffs.

Some cases, however, bear no resemblance to the tariffs’assumptions.

For example, a proceeding begun nominally as a chambers motion may assume trial functions; a case may have no "amount involved"; efforts may be substantially lessened by the efficiencies of capable counsel, or handicapped by obstructionism; the amount claimed may vary widely from the amount awarded; the case may assume a complexity with a corresponding work load that is far disproportionate to the court time by which costs are assessed under the tariffs; there may be rejected settlement offers, formal or informal, that would have saved everyone significant expense: paras. 17 and 18. • When subjectivity exceeds a critical level, the tariffs may be more distracting than useful.

In such a situation, it is more realistic to circumvent the tariffs and channel that discretion directly to the calculation of a lump sum. A principled calculation should turn on the objective criteria that are accepted by the Rules or case law: para. 18. [ 12 ] In Armoyan v. Armoyan , supra , the Court of Appeal held that a lump sum was more appropriate in that the proceeding ripened with features of a complex trial that consumed 10 days of hearing over 11 months; the matter was not remotely equivalent to a conventional chambers motion; there was no amount involved; the conduct of Mr.

Armoyan affected both the speed and expense of the proceeding; and a lump sum award was necessary to do justice between the parties. [ 13 ] In calculating the appropriate lump sum, the Court of Appeal employed percentages based upon the rejected settlement offer. The Court of Appeal applied a percentage rate of 66%, as representative of the substantial contribution for legal fees and disbursements incurred before the settlement offer, and 80% after the settlement offer. $306,000, which included disbursements, was awarded in total.

[14] Decision [15] After reviewing the submissions of the parties and the law, I have determined that a lump sum cost award is the appropriateaward in the special circumstances of the parties, and will fulfill the court’s overall mandate to do justice between the parties. By sodoing, I reject the application for solicitor client costs. The conduct in this case, although serious, did not reach the level required toallow the court to award solicitor client costs for the entirety of the proceeding. Further, the use of the tariffs is not appropriate becauseof the failure of Mr.

Cameron to provide complete disclosure. [16] Mr. Cameron’s failure to disclose resulted in obstructionism, impeded settlement, and prevented the court from ascertaining theamount involved as is required if the tariffs are to be applied. [17] This court’s decision, reported at 2014 NSSC 224, discussed the impact that nondisclosure has on the integrity of the trialprocess and on litigants at para. 19 and which states as follows: 19 In Leskun v.

Leskun, 2006 SCC 25, the Supreme Court of Canada underscored the importance of disclosure in matrimonialproperty litigation at para 34, which states as follows: 34 In all of these circumstances, the appellant has a poor platform from which to launch an attack against the trial judge's conclusionregarding his assets and liabilities. As Fraser J. commented in Cunha v. Cunha (BC SC), (1994), 99 B.C.L.R. (2d) 93(S.C.), at para. 9: Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which areinadequate.

It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drainedwomen simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of areasonably-based suspicion that justice was not done. If problems of calculation exist the appellant is largely the author of his own difficulties. I would not interfere on that basis. [18] This court’s decision, reported at 2014 NSSC 24, also underscored the specific consequences which could befall Mr.

Cameronif he refused to disclose at para. 20, which states as follows: 20 Case law is replete with courts attempting to craft relief in the absence of full disclosure, with such relief focussing on negativeinferences, deeming of income and assets, and significant cost awards: MacLean v. MacLean 2002 NSSC 5; Werner v. Werner, 2013NSCA 6; Bramwell v. Bramwell, 2012 NSSC 189; Paul v. Dennis, 2012 NSSC 366; Christmas v. McDonald, 2011 NSSC 480; Dowv. Dow, 2011 NSSC 229; Howley v. Howley, 2012 NSSC 123; Jenkins v. Jenkins, 2012 NSSC 117; Jon v. Jon, 2011 NSSC 419;Lahey v. Wright, 2010 NSSC 339; Lemire v.

Bourque, 2010 NSSC 192; Slater v. Slater, 2010 NSSC 353; and Young v. Marshall,2011 NSSC 50. The potential for such consequences was drawn home to Mr. Cameron during the second pretrial conference, when eachof these possibilities was specifically addressed. Despite the admonishment and encouragement of the court, Mr. Cameron elected not toprovide full disclosure. He did so at his own peril. He is solely responsible for the consequences arising from this decision. [19] Mr.

Cameron’s failure to provide disclosure in a timely fashion unnecessarily prolonged a proceeding which was capable ofbeing resolved without a two day hearing. Compounding this difficulty, was Mr. Cameron’s intransience on a number of issues,including Taylor’s primary residence and the calculation of retroactive child support. [20] The case assumed a complexity and an increase in work load that was disproportionate to the issues being addressed, primarilybecause Mr. Cameron failed to provide timely financial disclosure in conformity with the directions of the court.

Capable counsel washandicapped by the obstructionism of Mr. Cameron. In such a situation, it is more realistic to circumvent the tariffs and channel thediscretion into the principled calculation of a lump sum award. [21] In granting lump sum costs, I find that Ms. Cameron was the successful litigant. Mr. Cameron made minor inroads on thevaluation of the trailer, some debt issues, and the

section 7 award. Globally, however, Ms. Cameron succeeded on the outstandingissues. [22] Costs in the amount of approximately 67% of Ms. Cameron’s legal accounts are awarded, which award equals $29,000,inclusive of disbursements and taxes, based upon Ms. Cameron’s legal fees and disbursements which total in excess of $43,000, as ofJuly 7, 2014. This award does not impact upon the court’s previous ruling that solicitor client costs are awarded to resolve the divisionof the cash surrender value of the life insurance pursuant to para. 84 of the decision report at 2014 NSSC 224. Costs are payable bySeptember 30, 2014. Mr. Berliner is to draft the order. Forgeron, J.