Milligan v. Milligan, 2019 NSSC 188

Supreme Court of Nova Scotia Citation: Milligan v. Milligan , 2019 NSSC 188 Date: 20190611 Docket: 1209-1427 SARD-101815 Registry: Annapolis Royal Between: Clara Milligan Petitioner v. George Anthony Milligan Respondent Library Heading Judge: The Honourable Justice Pierre Muise Heard: By Correspondence Final Written Submissions: May 24, 2019 Written Decision: June 11, 2019 Subject: Family, Costs

Summary: The Respondent was awarded costs of $13,000 plus disbursements following a divorce hearing. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Milligan v. Milligan , 2019 NSSC 188 Date: 20190611 Docket: 1209-1427 SARD-101815 Registry: Annapolis Royal Between: Clara Milligan Petitioner v. George Anthony Milligan Respondent Judge: The Honourable Justice Pierre Muise Heard: By Correspondence Final Written Submissions: May 24, 2019 Counsel: Marc Charrier, for the Petitioner Maggie Shackleton, for the Respondent Positions of the Parties

Positions of the Parties [ 1 ] The parties agree that Clara Milligan should be required to pay costs to George Milligan. They disagree on the amount. [ 2 ] Mr. Milligan submits that the Court should apply Tariff A, using Scale 3, and order total costs in the range of $12,000 to $13,000. He suggests the addition of 25% to the Basic Scale to account for conduct of Ms. Milligan which caused delay and increased costs to him, including the following: (

a) attempting to relitigate issues which had already been thoroughly litigated and determined in the Family Court; (

b) failing to clarify her position prior to hearing, and changing her position on the day of hearing, requiring him to unnecessarily have to respond to a variety of potential issues; (

c) failing to disclose financial information; (

d) filing affidavit evidence late, requiring adjournment of hearing dates; (

e) taking an unreasonable position regarding the value of the matrimonial home without providing supporting evidence; and, (

f) waiting until the day of hearing to consent to some of the relief requested by him. [ 3 ] Each party blamed the other for the disintegration of a final settlement of all issues that had been reached on a day set for trial. They had been unable to agree on the wording of the order. However, no evidence was placed before me upon which I could determine which, if any, party was at fault. [ 4 ] Similarly, during submissions on costs, Ms. Milligan represented that the matter went to trial because Mr. Milligan was in breach of the interim consent order.

However, there was no evidence at trial upon which I could determine that there had been such a breach. [ 5 ] Ms. Milligan does not suggest a particular amount of costs, nor an approach to determining them. She merely asks the court to consider that:

a) she initiated the proceeding in relation to parenting because she was of the view that it was in the best interests of the children that they spend more time with her and Mr. Milligan was disturbing the relationship;

b) she is not wealthy, as, though she works two jobs, they are not high paying;

c) some of the delays were due to her lawyer’s illness and surgery, so it ought not affect costs; and,

d) her positions in relation to the value of the matrimonial home and renewal of the mortgage were not unreasonable. Law [ 6 ] Civil Procedure Rule 77 deals with costs. [ 7 ] Some of the applicable costs principles emanating from, or related to, that Rule are articulated in Armoyan v. Armoyan , 2013 NSCA 136 , at paragraphs 10 , 12, 13, and 16, as follows: 1. “The Court’s overall mandate” and the “supervening criterion” under Rule 77.02(1) is to “do justice between the parties”. 2. By operation of Rule 77.06, “unless otherwise ordered, party and party costs” of a trial “are quantified according to” Tariff A. 3.

Rule 77.07 gives the Court “discretion to raise or lower the tariff costs” taking into consideration factors such as “an unaccepted written settlement offer, whether or not the offer was made formally under Rule 10, and the parties’ conduct that affected the speed or expense of the proceeding”. 4. “The basic principle is that a costs award should afford substantial contribution to the party’s reasonable fees and expenses.” “Substantial contribution” now appears to mean a proportion of reasonable legal expenses that is much is less than two thirds to three quarters. [ 8 ] “A successful party is generally entitled to a cost award” and there must be a very good principled reason not to award costs: Smith v.

Smith , 2015 NSSC 73 , at para 3 . [ 9 ] “One principled reason to deny a successful party costs is that a parent should not be deterred from litigating a bona fide parenting claim by the prospect of a costs award”, provided that parent took a reasonable position and was motivated by the best interests of the children: MacLean v. Boylan , 2011 NSSC 406 , at para 19 , and Nemorin v.

Foote , 2009 NSSC 23 , at paras 3 to 9 . [ 10 ] Where the parties reach an agreement that essentially reflects what the party seeking costs was asking for from the beginning, that party should be entitled to costs where delay in responding or providing disclosure caused that party to incur unnecessary expenses: Anderson v.

Anderson , 2011 NSSC 90 , at paras 7 to 12 . [ 11 ] “While the ability of a party to pay a cost award is a factor that can be considered”, to discourage unnecessary prolongment of proceedings by parties personally incurring little legal expenses, while creating significant legal expense for the other party, “fairness may dictate that the successful party’s recovery of costs not be thwarted by later pleas of inability to pay”: Smith , supra , at para 3 .

[ 12 ] A party and party costs award should also include “necessary and reasonable disbursements”: Rule 77.10. Analysis [ 13 ] Mr. Milligan was the successful party on every issue which had to be determined by the Court. [ 14 ] In relation to the parenting issue, Ms. Milligan was unable to demonstrate a material change in circumstances. [ 15 ] In relation to the matrimonial home, her request that it be sold was denied. The Court granted Mr.

Milligan’s request for exclusive possession, and that his responsibility to have her name removed from the mortgage on the matrimonial home be deferred for three years to allow him to complete his bankruptcy payments, be discharged absolutely, and build sufficient credit to refinance in his own name. Ms. Milligan was ordered to execute a deed transferring her interest in the matrimonial home to him, to be held in escrow pending confirmation that her name would be removed from the mortgage. [ 16 ] In addition, the Court granted Mr. Milligan’s request for an order requiring Ms.

Milligan to sign the renewal of the mortgage on the matrimonial home, to reduce the interest rate and monthly payments, thereby allowing Mr. Milligan to maintain the home for the children and to complete his bankruptcy obligations more quickly. If Ms. Milligan failed to sign the renewal documentation, she would be required to pay the difference between the payments with and without the renewal. [ 17 ] Issues which were settled between the parties resulted in consent orders consistent with the relief which Mr. Milligan was seeking from the outset. His obligation to pay spousal support to Ms.

Milligan was suspended, then terminated. Ms. Milligan was required to pay him child support, ultimately based upon her correct income amount, which was higher than that initially represented. Equal division of personal property was effected by Mr. Milligan delivering to her an ATV and utility trailer, significantly less than that which she had been seeking. [ 18 ] The trial was heard over two hearing days, preceded by two prior adjournments which occurred on the day the parties appeared for final hearing. One of those adjournments was created by a negotiated settlement which ultimately fell apart.

However, on that day, the court also heard the evidence required to grant the divorce. The other adjournment was created by Ms. Milligan filing an affidavit late. [ 19 ] In addition, there was an interim motion which was adjourned because Ms. Milligan changed lawyers close to the hearing date and had a death in her family. A temporary suspension of spousal support was put in place by consent.

On the day eventually scheduled for hearing of the interim motion, the parties reached an agreement, and two days were set for the trial. [ 20 ] Part of the trial dealt with the issue of material change in circumstances relating to parenting. No dollar value can be assigned to that. However, the “amount involved” for the purposes of Tariff A can be properly determined by using the amount Ms. Milligan advanced should be owing to her, considering the value of the matrimonial home and the division of matrimonial debt. [ 21 ] Her position going into the trial was that the matrimonial home had a value of $340,000.

She sought sale of the matrimonial home and unequal division of the net proceeds. The reason she advanced for unequal division was that the bank was pursuing her for approximately $80,000 of joint debt which Mr. Milligan had cleared himself of obligation to pay through his bankruptcy. She did so despite intending to file for bankruptcy herself immediately following the divorce proceeding. [ 22 ] The Court concluded that the matrimonial home is worth approximately $230,000.

It also concluded that the $80,000 bank debt did not justify an unequal division because, among other reasons, she would not be paying it and Mr. Milligan had covered all of the expenses relating to the matrimonial home since separation, including all of the mortgage payments. [ 23 ] The Court determined that there was no equity in the matrimonial home. If anything, there was negative equity. Ms. Milligan was required to sign over her interest in the home without any payment to her. She was effectively seeking entitlement, after considering disposition costs, to approximately $80,000.

That amount can properly be used as the “amount involved” in the circumstances of the case at hand. [ 24 ] The Basic Scale under Tariff A, for an “amount involved” between $65,001 and $90,000, is $9,750. There is no reason to go below the Basic Scale. Tariff A also calls for an additional $2,000 per day of trial to be added to the Scale amount. That results in a total of $13,750. [ 25 ] That total is higher than the high end of the range requested by Mr. Milligan, i.e. $13,000. He estimates that his total legal fees will be $18,000, plus disbursements and HST.

He indicates that the amount requested will provide “substantial contribution” towards his legal expenses. [ 26 ] $18,000, plus HST, totals $20,700. $13,000 is approximately 63% of that total. That is within the range of proportions now accepted as “substantial contribution”. [ 27 ] A question was raised regarding whether Ms. Milligan’s income level justifies diminishing the amount of costs awarded. Her current income is approximately $24,000 per year. However, she also has a common-law spouse with an annual income of approximately $36,000.

There was some inconsistency in her evidence regarding what she pays towards household expenses. At one point she said that her common-law partner pays all the mortgage payments. At another point she indicated that she paid half of the mortgage payments, or $200 per month. She also said she pays for her cell phone and part of the power and water. She has no vehicle payment. Therefore, if given sufficient time, she ought to have the ability to pay costs. [ 28 ] The question of parenting had already been thoroughly canvassed by the Family Court.

She filed the petition for divorce and request for relief in September 2016, which was within three months of the written decision in that matter. Her initial affidavit primarily consisted of allegations of fact preceding the hearing in Family Court. It read as an appeal, as opposed to a variation request. Even though the parenting portion of the divorce hearing was not completed until April 2019, she was unable to establish a material change in

circumstances. [ 29 ] Ms. Milligan argued, in her brief on costs, that she initiated the matter because she thought Mr. Milligan was going to move out of the region, thus disrupting her relationship with the children. However, that was not in her initial affidavit. That affidavit only talked about her, herself, no longer wanting to move. Her second affidavit related hearsay from an unnamed source that Mr. Milligan was planning to move. That is obviously inadmissible, and, even if admitted, would carry no weight. At trial the only evidence relating to a potential move by Mr.

Milligan was a move that might be necessitated if her refusal to sign the mortgage renewal maintained the mortgage payments at the much higher than required level, rendering him unable to meet the payments. Mr. Milligan was clear that he wanted to remain in the matrimonial home with the children as long as they continued to be children of the marriage. [ 30 ] One of her main complaints at trial was that Mr. Milligan, by enrolling Alice in the Middleton Hockey Team, was creating a situation which interfered with her parenting time. In protest, she refused to attend any of Alice’s games.

She did not raise a similar complaint regarding Olivia being on the Bridgetown School Hockey Team, even though Olivia played games much further away than Alice did. Yet she still did not attend any of Olivia’s away games. Further, Middleton was the closest location which had a team Alice could play on. It is the next town over from Bridgetown. This was an example of the unreasonable types of positions she took in the hearing.

It, along with other evidence she provided at trial, reconfirmed the finding of the Family Court Judge that she was more concerned about her own interests than those of the children. [ 31 ] For these reasons, there is no principled reason to deny Mr. Milligan costs, nor reduce them, for fear of deterring a parent, who is taking a reasonable position and motivated by the best interests of the children, from bringing a parenting issue before the court. [ 32 ] I agree with Ms.

Milligan that the adjournments required because of her lawyer’s illness, and the disintegration of the agreement reached between the parties on the first day of trial (ie. the day when the only evidence presented was that required to prove the divorce) do not militate in favour of an increased cost award. [ 33 ] However, some of Ms. Milligan’s conduct in the proceeding was such that it could support raising the tariff costs.

It includes the following. [ 34 ] Her late filing of affidavit evidence required an adjournment. [ 35 ] She delayed providing financial information in relation to her common-law partner until shortly before the April 2019 portion of the hearing, and did not provide her own updated financial information until after the hearing. [ 36 ] Her position on various issues kept changing. For instance, in relation to the matrimonial home she indicated a willingness to transfer her interest to Mr. Milligan on calculation of an equalization amount.

Then, by the end of the first day of hearing she stated she wanted the house sold. In the subsequent brief, provided before the second day of hearing, she indicated she wanted the house sold and the proceeds divided unequally. When she appeared in court she stated she was prepared to agree to an equal division. [ 37 ] She continued holding on to the belief that the matrimonial home had an exorbitantly high value, based only on an amount indicated on a mortgage information

summary dated April 19, 2016, as being an “appraised amount”, with no explanation of what was meant. That figure was much higher than the tax assessment amounts and the estimates provided by realtors, including an estimate as of April 12, 2019, that it should sell for about $230,000. The evidence, that the mortgage amount had been increased while the parties were together to effect renovations that were not completed, suggested that the “appraised amount” was an estimate of the value with anticipated renovations.

It was unreasonable for her to continue advancing that the home was worth $340,000 without proper supporting evidence. [ 38 ] Her conduct caused unnecessary legal expense to Mr. Milligan. He had to prepare to respond to changing positions, and unknown information and positions, resulting in him having to address multiple potential points. He had to prepare to respond to positions on issues which were ultimately settled at the Courthouse in accordance with what he was seeking. [ 39 ] In addition, though there is no evidence of formal offer to settle, correspondence was sent to Ms.

Milligan warning her that, if she continued to maintain her position in relation to the mortgage renewal, and Mr. Milligan was required to request relief from the Court on that point, he would be seeking costs. [ 40 ] However, in light of: her moderate level of income; her responsibility to pay her own legal fees; and, the $13,000 requested for costs as substantial contribution being satisfied by the Basic Tariff A Scale, in the circumstances, it would not be proper to increase costs because of her conduct.

Conclusion [ 41 ] Considering these points, the requested award of costs in the amount of $13,000 is appropriate; and, in the circumstances, it does justice between the parties. [ 42 ] However, Ms. Milligan will need some time to pay. [ 43 ] Therefore, I order her to pay party and party costs to Mr. Milligan in the amount of $13,000, plus reasonable disbursements, in monthly instalments of $400, due and payable on the first of each month, commencing July 1, 2019, until paid in full. [ 44 ] I have not been provided with a breakdown of the disbursements.

If the parties are unable to agree on what constitutes reasonable disbursements, I will receive written submissions on that point. ______________________________ Pierre Muise, J.