Harris v. Durling, 2016 NSSC 19

SUPREME COURT OF Nova Scotia Citation: Harris v. Durling , 2016 NSSC 19 Date: 2016-01-22 Docket: 1209-1180/SARD 61153/FANMCA-34376 Registries: Halifax and Annapolis Royal Between: SARAH HARRIS Applicant v. BENJAMIN DURLING and MICHAEL WEIR Respondents Judge: The Honourable Justice Pierre L. Muise, J Submissions: Oral submissions received in Annapolis Royal on November 20, 2015 Final written submissions received December 8, 2015 Counsel: Sarah Harris, on her own behalf Lynn Connors, Q.C. on behalf of the Respondents DECISION ON COSTS [ 1 ] Ms. Harris and Mr. Durling were divorced.

The Corollary Relief Order provided the parenting arrangements for the one child of the marriage, Mattie Harris. [ 2 ] Ms. Harris had lived common-law with Mr. Weir. A Consent Family Court Order provided the parenting arrangements for the one child of their union, Lyndi Harris. [ 3 ] Ms. Harris brought an application in the Supreme Court, at Annapolis Royal, for permission to relocate Mattie to Alberta. She also made an application in the Family Court for permission to relocate Lyndi to Alberta.

To facilitate both applications being dealt with by the same Judge, the Family Court matter was commenced as an application in the Family Division of the Supreme Court at Halifax and transferred to the Southwestern District, with myself being appointed as the Judge to hear both applications as one. [ 4 ] The hearing took place August 18, August 19 and September 2, 2015. Final written submissions were received on November 6, 2015.

I rendered an oral decision on November 20, 2015, dismissing the mobility application and modifying the parenting arrangements. [ 5 ] This is my decision on costs in relation to those applications. [ 6 ] The Respondents requested costs totalling $12,000, to be split equally between them. This was based upon the basic scale (Scale 2) in Tariff A and an amount involved of less than $25,000, resulting in a base amount of $4,000, plus $2,000 per day for four days.

They submitted that the docket appearances and pre-trial conferences in both the Family Court and the Supreme Court, plus the appearance in Supreme Court where the matter was adjourned to permit it to be heard with the Family Court matter, should be added to the three full days which were actually occupied by the hearing itself. [ 7 ] Alternatively, they submitted that Tariff C, with a multiplier, should be applied. [ 8 ] They submitted such an award of costs was in keeping with Mr. Durling’s total legal fees, disbursements and HST of approximately $15,000 and those of Mr. Weir of approximately $13,000.

However, no statement of account was provided to help the Court to assess the reasonableness of those charges. [ 9 ] In support of their position on costs, they referenced MacLean v. Boylan , 2011 NSSC 406 . That case made reference to prior jurisprudence stating that Tariff A should be applied to most applications in the Family Division because they are “in reality, trials”. It also made reference to the rule of thumb that, in non-monetary matters, $20,000 per day in court should be used as the amount involved.

[10] The Respondents also argued that they should be entitled to costs because they were prepared to accept the parentingassessment recommendations which were very close to the ultimate determination of the Court. In addition, the Court’s decisionincluded a comment that it was abundantly clear that the mobility application should be denied. [11] At trial, even though Ms. Harris made it clear that she would remain in Nova Scotia if she was not permitted to relocate thechildren, the Respondents requested a change of custody to them. They argued, in relation to costs, that a change in custody was a liveissue.

They suggested that custody was a live issue because the Assessor, though it was not his first choice as being in the best interestsof the children, saw benefit in such a parenting arrangement for the purpose of deterring future mobility applications. They alsosuggested that, since the Court did not change the custody arrangement, a significant costs award is required to deter a future frivolousand vexatious mobility application. [12] Ms. Harris submits that all parties should bear their own costs as success was divided. She acknowledged she was unsuccessfulin her mobility application.

However, she pointed out that she did obtain primary care of Lyndi and an order requiring Mr. Weir to paymaintenance. There had previously been a shared parenting arrangement with no maintenance payable. In relation to Mattie, theparenting changes made to the existing order were essentially a reflection of what had been happening in practice in any event, with thebiggest change being that Mr. Durling no longer had to pay maintenance. [13] In support of her position, Ms. Harris presented the following cases: NDL v. MSL, 2010 NSSC 159; O’Neil v. O’Neil, 2013NSSC 64; and, Burchill v.

Savoie, 2011 NSSC 236. [14] As a preliminary point, I agree with the comments at paragraph 39 of MacLean v. Boylan that calculation of the length of thehearing should not include the time spent in pre-trial conferences. Therefore, I reject the Respondents’ submission that the length of thehearing should be considered to be four days.

In my view, it was a three day hearing. [15] As a further preliminary point, I will also address the comments at paragraph 19 of MacLean and Boylan that: “One principledreason to deny a successful party costs is that a parent should not be deterred from litigating a bona fide parenting claim by the prospectof a costs award. … Reviewing the jurisprudence, a parent has been shielded from a costs order where the litigation was of centralsignificance to the child’s parenting: in Nemorin v.

Foote, 2009 NSSC 19 the issue was relocating a child to another province … .” [16] In the costs decision in Nemorin, 2009 NSSC 23, at paragraphs 3 to 9, the Court stated: “[3] In Chera v. Chera, 2008 BCSC 1640 , 2008 B.C.S.C. 1640, [2008] B.C.J. No. 2331 (S.C.) it was held that parentsshould not be penalized for their genuine desire to seek a judicial resolution of the issue of the best interests of a child and this isespecially so in mobility cases such as Cameron v. Cameron, 2005 BCSC 190 , 2005 B.C.S.C. 190, where costs were denied.

While these cases dealt with double costs, the rulings encompassed the same principle for ordinary costs. [4] In this case, as in Cameron, supra, there was a genuine issue to be tried; both parents had a reasonable position, and theirmotivation was the best interests of the child. As was stated in the decision, mobility cases are amongst the most difficult for the court asthere are so many factors, and there is no winner. [5] In Gordon v.

Goertz (SCC), [1996] 2 S.C.R. 27, the Supreme Court of Canada ordered the parties to beartheir own costs of the entire proceedings, overturning a costs award from the Saskatchewan Court of Appeal. It appears therefore that incustody, and especially in mobility cases, where there is a justiciable issue addressing the best interests of the child, the risk of costscould deter litigants from pursuing a legitimate bona fide claim that should be heard and determined. [6] The question of reasonableness is significant in these matters. [7] In Jachimowicz v.

Jachimowicz, 2007 NSSC 303 , 2007 N.S.S.C. 303, the mother’s conduct was such that,following a 13 day trial, the court concluded that the mother’s alienating behaviour which persisted even after the first decision, put thechild at risk. Her conduct was not tolerated and led to the lengthening of the proceedings.

Costs were awarded in that custody case. [8] By contrast, in the present case, I find the applicant’s application, her reasons, and her conduct were genuine and, inbalancing all of the factors, it was a decision that could have gone either way. [9] Therefore the parties should bear their own costs.” [17] In contrast, in the case at hand, I concluded that: the factors supporting refusing the relocation request overwhelmingly

outweighed those supporting permitting it; and, it was abundantly clear that it was in the children’s best interests to remain in Nova Scotia. It was not reasonable to request the move on the basis of the plan advanced. In my view, it ought to have been clear from the beginning that it was not a decision that could go either way. [ 18 ] For these reasons, I am not of the view that this is one of those cases where the unsuccessful parent ought to be relieved from liability for costs. [ 19 ] The question which remains is what quantum of costs will do justice between the parties.

There are a number of cases indicating that, for most applications in the Family Division, costs awarded in accordance with Tariff A are more appropriate than costs awarded based upon Tariff C. MacLean and Boylan is one example. A more recent example is Higgins v. Bourgeois Higgins , 2015 NSSC 293 . [ 20 ] However, another recent decision, Forman v. Stanley , 2015 NSSC 31 , takes a contrary view.

It states, at paragraph 21, that, as a general rule: “[21] Family proceedings, commenced by application, differ significantly from most trials, both in respect of the extent of pre- hearing processes and the length of the hearing (by reason of both direct and cross occurring in the courtroom). Tariff C, not Tariff A, is the appropriate frame work for assessing costs in respect of applications in chambers, whether in the family context or in the non-family civil and administrative law context.

There are few circumstances in which Tariff C is not the appropriate tool for the assessment of costs in respect of applications in family proceedings.” [ 21 ] It is noteworthy that Forman v.

Stanley was decided in the context of an application to vary made under the District Family Rules, while the other decisions referenced dealt with applications to vary made under the Family Division Rules. [ 22 ] In my view, this distinction is noteworthy because Civil Procedure Rule 62.28 (one of the District Family Rules) specifies that a variation application may be brought by way of “A Notice of Application in Chambers, if the person is satisfied the hearing will take less than a half-day, or otherwise a Notice of Application in Court”.

In contrast, Family Division Rule 59.12 simply gives direction as to the content of the Notice of Variation Application. Neither Rule 59.12, nor Form 59.12, provide guidelines for whether the application should be an application in court or an application in chambers. [ 23 ] Civil Procedure Rule 77.06 provides that, unless the Judge orders otherwise, Tariff A applies to applications in court and Tariff C applies to applications in chambers. Therefore, in the District Family Rules, there is clear provision for the application of Tariff A in some circumstances and Tariff C in other circumstances.

Consequently, in my view, the general approach in the Family Division is not applicable to District Family proceedings. In the Districts, the approach outlined in Forman v. Stanley is the proper approach for applications in chambers. For applications in court, Tariff A is presumptively applicable. [ 24 ] Having said that, there is often more to determining what amount of costs will do justice between the parties than a simple mathematical application of the Tariffs. It is a discretionary decision involving consideration of a multitude of principles and factors. [ 25 ] A concise, and often quoted,

summary of the applicable principles is provided at paragraph 3 of Fermin v. Yang , 2009 NSSC 222 , which states: “[3] Several principles emerge from the Rules and the case law: 1. Costs are in the discretion of the Court. 2. A successful party is generally entitled to a cost award. 3. A decision not to award costs must be for a “very good reason” and be based on principle. 4.

Deference to the best interests of a child, misconduct, oppressive and vexatious conduct, misuse of the court’s time, unnecessarily increasing costs to a party, and failure to disclose information may justify a decision not to award costs to a otherwise successful party or to reduce a cost award. 5. The amount of a party and party cost award should “represent a substantial contribution towards the parties’ reasonable expenses in presenting or defending the proceeding, but should not amount to a complete indemnity”. 6.

The ability of a party to pay a cost award is a factor that can be considered, but as noted by Judge Dyer in M.C.Q. v. P.L.T. 2005 NSFC 27 : “Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves (because of public or third-party funding) but at a large expense to others who must “pay their own way”. In such cases, fairness may dictate that the successful party’s recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon , 2004 BCSC 65 ].” 7.

The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8. In the first analysis the “amount involved” required for the application of the tariffs and for the general consideration of quantum is the dollar amount awarded to the successful party at trial. If the trial did not involve a money amount other factors

apply. The nature of matrimonial proceedings may complicate or preclude the determination of the “amount involved”. 9. When determining the “amount involved” proves difficult or impossible the court may use a “rule of thumb” byequating each day of trial to an amount of $20,000 in order to determine the “amount involved” 10. If the award determined by the tariff does not represent a substantial contribution towards the parties’ reasonableexpenses “it is preferable not to increase artificially the “amount involved”, but rather, to award a lump sum”. However, departurefrom the tariff should be infrequent. 11.

In determining what are “reasonable expenses”, the fees billed to a successful party may be considered but this is onlyone factor among many to be reviewed. 12. When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and alsoexamine the reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court.” [26] In Armoyan v.

Armoyan, 2013 NSCA 136, paragraphs 17 to 18, and 27, provided the following direction in relation toadjustment of, or departure from, Tariff costs: “[17] The tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventionalcase whose circumstances conform generally to the parameters assumed by the tariffs. The remaining discretion is a mechanism forconstructive adjustment that tailors the tariffs’ model to the features of the case. [18] But some cases bear no resemblance to the tariffs’ assumptions.

A proceeding begun nominally as a chambers motion,signalling Tariff C, may assume trial functions, contemplated by Tariff A. A Tariff A case may have no “amount involved”, otherimportant issues being at stake. Sometimes the effort is substantially lessened by the efficiencies of capable counsel, or handicapped byobstructionism. The amount claimed may vary widely from the amount awarded. The case may assume a complexity, with acorresponding workload, that is far disproportionate to the court time, by which costs are assessed under provisions of the Tariffs.

Conversely, a substantial sum may turn on a concisely presented issue. There may be a rejected settlement offer, formal or informal, thatwould have saved everyone significant expense. These are just examples. Some cases may combine several such factors to the degreethat the reflexive use of the tariffs may inject a heavy dose of the very subjectivity – e.g. to define an artificial “amount involved” asJustice Freeman noted in Williamson – that the tariffs aim to avoid. When this subjectivity exceeds a critical level, the tariff may bemore distracting than useful.

Then it is more realistic to circumvent the tariffs, and channel that discretion directly to the principledcalculation of a lump sum. A principled calculation should turn on the objective criteria that are accepted by the Rules or case law. …. [27] Rule 77.07(2)(

b) permits the adjustment of a costs award based on an unaccepted written settlement offer, whether madeformally under Rule 10 “or otherwise”. Rule 59.39(7) excludes Rules 10.05 to 10.10 (formal offers to settle in the Supreme Court -General Division) from family proceedings. But Rule 77.07(2)(

b) is not excluded, and unaccepted offers of settlement may impact costsin family proceedings: e.g. Fermin v. Yang, 2009 NSSC 222 , para 3, # 12, per MacDonald, J.. I agree with Justice Campbell’ssentiments in Kennedy-Dowell v. Dowell (2002), 2002 NSSF 50 , 209 N.S.R. (2d) 392 (S.C.), under the former Rules: [12] In my opinion, the reasonableness of both the trial position and the bargaining position (including the timing ofconcessions made) is a very important factor in deciding whether an order for costs should be made.

This is especially truein family law matters because the parties are often of limited resources and can often face legal fees after a trial which make theprocess uneconomical and devastating to the family including children. Family law disputes are capable of out of court resolution inmany cases and the policy of the court regarding costs should promote compromise and reasonableness in the negotiating process.

For that reason, the court should measure each party’s bargaining position against the court’s adjudication to measure thereasonableness of each position. …” [27] In the case at hand, though the “Durling” Application was commenced under the District Family Rules as an application inchambers, it consumed three full hearing days. Therefore, it ought to have been brought as an application in court. Nevertheless, becauseit was brought as an application in chambers, that eliminated some of the pre-hearing procedures that would otherwise have beenavailable such as discovery.

However, the pre-hearing conference conducted was more akin to, and as time-consuming as, a motion fordirections in an application in court.

Consequently, there is reason to stray from the presumptively applicable Tariff C and apply TariffA. [28] Further, the “Weir” Application was commenced in the Family Court, then in the Family Division of the Supreme Court.Therefore, the choices of application types available in the “Durling” Application, were not available, and the general rule of using TariffA comes into play. [29] In the case at hand, a strict application of Tariff A, Scale 2, using an amount involved of $60,000, based on $20,000 per trialday multiplied by three trial days, then adding a further $2,000 per trial day, produces total costs of $13,250. [30] The

preamble to the Tariffs provides: “In these Tariffs unless otherwise prescribed, the ‘amount involved’ shall be

…. (

c) where there is a substantial non-monetary issue involved and whether or not the proceeding is contested, an amount determined having regard to (

i) the complexity of the proceeding, and (ii) the importance of the issues.” [ 31 ] The proceeding was not complex. However, the matter was clearly of importance to the parties. Ms. Harris wanted to move to Alberta with her children so that she could live there with her fiancée. If the relocation was not permitted, she would be remaining in Nova Scotia. Both fathers had been parenting the respective children almost half of the time.

Permission to relocate in Alberta would result in a significant diminishment of their parenting time, particularly given that their limited resources would make it very difficult to afford access transportation. [ 32 ] Nevertheless, it was clear to the Respondents in advance of the hearing that the plan for the children in Alberta was inadequate, and not in their best interests, As such they ought to have known the risk of relocation being permitted was minimal. [ 33 ] In my view, in the circumstances, these factors justify an amount involved of less than $25,000 as suggested by the Respondents.

Using Scale 2 of Tariff A and adding $2,000 per hearing day, for three days, results in total costs of $10,000. [ 34 ] Under Tariff C, the basic amount would be $6,000. [ 35 ] However, the application was determinative of the entire matter at issue. Therefore, consideration must be given to whether or not to apply a multiplier. [ 36 ] For the reasons noted, the matter was of importance to the parties. [ 37 ] The Respondents filed numerous and voluminous affidavits. Their counsel engaged in lengthy cross-examination of the Affiants for Ms. Harris. In contrast, Ms.

Harris kept her affidavits and cross-examination brief and to the point. In my respectful view, the Respondents’ affidavits and questioning were excessive and covered numerous points of borderline relevance. Ms. Harris did respond with some affidavit evidence that was lengthier than her initial affidavits. However, that was only to address points raised by the Respondents.

Therefore, although there was a significant amount of effort involved in preparing for and conducting the Application on behalf of the Respondents, a significant portion of that was unnecessary or brought about through excessive caution on the part of the Respondents. [ 38 ] Consequently, the maximum appropriate multiplier would be 2.

That would result in a total costs award of $12,000. [ 39 ] I must also consider the fact that, but for the Respondents’ excessive or unnecessary affidavit evidence and questioning, the hearing would have taken less time. [ 40 ] There was no evidence of any written offers of settlement to bring into play Rule 77.07(2)(b).

However, I am directed to consider “the reasonableness of both the trial position and the bargaining position (including the timing of concessions made)” in deciding the issue of costs. [ 41 ] In the case at hand, on the morning of the first day of the hearing, the Respondents made it known that they were prepared to accept the recommendations of the Parenting Assessor. My final determination was very close to those recommendations. That bargaining position was reasonable. If Ms. Harris had accepted it, there would have been no need for the three days of hearing.

However, the fact that the offer was made on the morning of the trial gave Ms. Harris little or no time to consider it. [ 42 ] The trial position taken by the Respondents, at least as one option, was that primary care of the children should be changed to them, even with Ms. Harris remaining in Nova Scotia. [ 43 ] In relation to Mr. Weir, in my view, that was a totally unreasonable trial position, particularly where Lyndi, for some valid reasons, had indicated a desire to be parented by him on a much more limited basis. Her wishes, in my view, emanated, at least in part, from Mr. Weir’s reactions and behaviour.

As such, it was clearly not in Lyndi’s best interests that he have primary care. [ 44 ] In addition to Mr. Weir’s trial position being unreasonable, I found him to be unreasonably inflexible in dealing with access exchange prior to the hearing. That, in my view, likely contributed to the communication difficulties between him and Ms. Harris, which diminished the chances of resolution. [ 45 ] In relation to Mr. Durling, given Ms. Harris’ abuse of her primary care position in a manner that was contrary to Mattie’s best interest, it was not unreasonable for him to seek a change in primary care. [ 46 ] At trial, Ms.

Harris took the position that, if she was not permitted to relocate the children: she should have primary care of Lyndi with reduced parenting time with Mr. Weir; and, the existing arrangement with Mr. Durling in relation to Mattie should continue. With some fine tuning to eliminate her ability to abuse her primary care position in relation to Mattie, and a corresponding termination of Mr. Durling’s child support obligations, that is essentially what was finally determined.

[ 47 ] Consequently, in relation to the issues collateral to relocation, there was some division of success. However, in my view, the catalyst for, and the central focus of, the Application was the relocation request. In relation to that issue, the Respondents were completely successful. [ 48 ] The evidence required to determine the collateral issues added very little time to the hearing as the same factors were applicable.

I must also consider the points highlighted in the comments of O’Neil, A.C.J.S.C.(F.D.) in Savoie at paragraph 3 , and in Higgins , at paragraph 5 , that: “Arriving at a costs assessment in matrimonial matters is difficult given the often mixed outcome and the need to consider the impact of an onerous costs award on the families; and the children in particular. The need for the court to exercise its discretion and to move away from a strict application of the tariffs is often present.” [ 49 ] In the case at hand, the parties have moderate income levels. Ms.

Harris, who has the highest income of the parties, has an income of $51,791. Consequently, I am concerned about the negative impact of an onerous cost award on the children. That impact can, to some extent, be diminished, as the Respondents suggested, by offsetting it against arrears owing from Mr. Durling and future support payments owing from Mr. Weir. [ 50 ] Considering these points, in my view, a strict application of the Tariffs would not do justice between the parties. In my view, it is appropriate that Ms. Harris’ costs liability be limited to $8,000.

It is clearly not one of those situations where the need for exceptional legal services would justify a lump sum amount greater than what would otherwise be paid under the Tariffs. Rather, the circumstances justify such a reduction below the Tariff amounts. [ 51 ] Mr. Durling took a far more reasonable position, and was clearly more successful, than Mr. Weir. Therefore, it would be unfair to divide the costs award equally between them. In my view, it is more fair to order that Ms. Harris pay Mr. Durling $5,000 in costs and pay Mr. Weir $3,000 in costs. [ 52 ] The costs owing to Mr.

Durling shall be reduced by the amount of arrears of child support Mr. Durling owes to Ms. Harris. If any costs remain owing after that reduction, they shall be paid by Ms. Harris to Mr. Durling at a rate of $200 per month, commencing the first day of March, 2016, until paid in full. [ 53 ] In relation to the $3,000 in costs owing to Mr. Weir, that shall be paid by permitting Mr. Weir to keep the amount of child support, including basic child support and special expenses, he would otherwise be required to pay to Ms. Harris, which amount shall be credited against the costs amount owing to him by Ms.

Harris, until those credited amounts have accumulated to the total $3,000. Thereafter, Mr. Weir shall be required to pay child support to Ms. Harris in accordance with my decision on the variation application and the resulting order. [ 54 ] I ask Counsel for the Respondents to prepare the Costs Order. Pierre Muise, J.