Power v. Power, 2015 NSSC 399

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Power v. Power , 2015 NSSC 399 ENDORSEMENT Joseph Patrick Power v. Angela Rose Power Prothonotary No. 1201-059129 (SFH-D 35445) September 16, 2015 • Joseph Power on his own behalf • Angela Power on her own behalf Request for costs of $35,438.00 based on Tariff A, scale 3, and a hearing of one and one-half days duration, with an additional amount of $4,000.00 for conference time, following a variation application proceeding. Costs sought against Mr. Power, his counsel, the Maintenance Enforcement Program and Attorney-General of Nova Scotia. Ms.

Power also sought to have the order bear interest and that failure to pay may be punished as contempt. Decision: Mr. Power shall pay Ms. Power costs of $32,438.00 immediately and Mr. Power’s failure to pay this costs award may be punished as contempt. Costs are not awarded against Brian F. Bailey, the Maintenance Enforcement Program or the Attorney-General of Nova Scotia. As provided for by subsection 2(1) of the Interest on Judgments Act , R.S.N.S. 1989, c. 233, until satisfied this judgment debt shall bear interest at the rate of five percent per annum . Reasons: 1 .

In July 2014, Joseph Power applied to vary child support, seeking to vary the amount of child support he pays both prospectively and retroactively from May 6, 2013. As well, he sought “forgiveness of child support arrears and/or a moratorium on collection of child support arrears” and an order under sections 15 and 46 of the Maintenance Enforcement Act , S.N.S. 1994-95, c. 6 addressing arrears of support. 2 . Mr. Power’s variation application was filed approximately six months after Ms. Power applied to have Mr. Power found in contempt of various court orders.

Conferences (held on July 23, 2014 and August 1, 2014) and the hearing (which required a full day on September 25, 2014 and approximately one hour on April 8, 2015) dealt with both applications. My decision on costs addresses costs only in the context of Mr. Power’s variation application, following my decision on that application which is reported at Power , 2015 NSSC 234 . I have not yet rendered a decision on Ms. Power’s contempt application. 3 . Mr. Power was wholly unsuccessful in his variation application. 4 . Mr.

Power sought forgiveness or a moratorium on the collection of a retroactive child support order of $171,786.00 and periodic payments which, at the time the application was heard in September 2014, were in arrears of approximately $22,924.00 (solely as they relate to Justice Lynch’s order of May 6, 2013). When the hearing began in September 2014, Mr. Power was seeking forgiveness or a collection moratorium on $194,713.00. When the hearing concluded, an additional $16,753.00 had accrued in arrears. (These amounts consider the payments noted by Ms.

Power at page 25 in her costs submissions.) The amount involved was $211,466.00. 5 . Mr. Power has made no submissions on costs. 6 . Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. 7 . Costs are in my discretion. A decision not to award costs must be principled. 8 . Civil Procedure Rule 77.02(1) states that I “may, at any time, make any order about costs as [I am] satisfied will do justice between the parties.” 9 . Ms. Power asks that I apply Scale 3, which increases the basic costs award of $22,750.00 increased by twenty-five percent. 10 .

There are a number of factors which complicated the variation application: Ms. Power was required to obtain three orders for

disclosure of materials relevant to Mr. Power’s claim and required to sub poena a witness from the Bank of Montreal, as well as arrangethe attendance of a witness by video-conference. Mr. Power provided his disclosure late – including information which was disclosedless than one week before the hearing began. 11. In light of Mr. Power’s conduct, I conclude that Scale 3 is appropriate. 12. I fix the length of trial at two days. This considers September 25, 2014 as one day of trial and considers April 8 and the twoearlier conferences as a second day.

I do not consider the earliest conference (held on March 27, 2014) in my calculation of the length oftrial: this conference pre-dated Mr. Power’s variation application. 13. Having regard to Tariff A, Scale 3 and the length of trial, I order Mr. Power to pay Ms. Power costs of $32,438.00immediately. This amount is inclusive of all disbursements. 14. Ms. Power asks that I order costs against Brian Bailey. She relies on Justice Newbould’s decision in Schreiber v. Mulroney, (ON SC) where costs were awarded personally against Mr.

Schreiber’s counsel who breached an undertaking andsought a certificate of non-attendance at a discovery (where the notice of examination was being challenged). 15. In Young, (SCC) on page 84, Chief Justice McLachlin (whose reasons were endorsed by a majority of theSupreme Court of Canada), said that I “must be extremely cautious” in awarding costs personally against a lawyer. Lawyers have a dutyto guard the confidentiality of the instructions they receive from their clients and a duty to advance “even unpopular causes”.

She saidthat “A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamentalduties of his or her calling.” 16.

Also in Young, (SCC) on page 84, Chief Justice McLachlin acknowledged that the “basic principle on whichcosts are awarded is as compensation for the successful party, not in order to punish a barrister.” She said that any lawyer might beliable to a “compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and applications,characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging this abuse and delay.” 17. The description offered by Chief Justice McLachlin does not apply to Mr. Bailey’s conduct. 18. Mr.

Power’s variation application was heard with Ms. Power’s application to find Mr. Power in contempt. Ms. Power seeksto have Mr. Power incarcerated if he is found in contempt. Mr. Power is entitled to a vigorous defence and Mr. Bailey has providedthat. His conduct does not attract an award of costs against him. 19. Ms. Power has asked that I award costs against the Maintenance Enforcement Program and the Attorney-General of NovaScotia, neither of which were a party to the variation application. 20.

According to Chief Justice McLachlin in Young, (SCC) at pages 84-85, where costs are sought against anon-party, the costs must be awarded on the basis that the non-party financially supported the litigation. There is no evidence before methat either the Maintenance Enforcement Program or the Attorney-General of Nova Scotia supported Mr. Power’s variation applicationfinancially. 21. I dismiss Ms. Power’s claim for an order for costs against the Maintenance Enforcement Program and the Attorney-Generalof Nova Scotia. 22. Ms. Power asks that I order interest to accrue on this costs order.

I do not see this as necessary. Subsection 2(1) of theInterest on Judgments Act, R.S.N.S. 1989, c. 233, provides that “Until it is satisfied, every judgment debt shall bear interest at the rate offive per cent per annum or, where another rate is prescribed pursuant to subsection (2), at that other rate.” I am prescribing no other rateof interest, so interest will accrue on the costs award at the rate of five percent per annum. 23. Ms. Power asks that I expressly order that Mr. Power’s failure to pay this costs award may be punished as contempt. I do so. Justice Lynch varied Mr.

Power’s child support payments by a decision made in March 2013. Mr. Power has never sought to stay thatdecision. While he appealed it, he abandoned his appeal ten months after Her Ladyship rendered her decision. He applied to vary theorder more than a year after it was made and this application was unsuccessful. Ms. Power has been put to considerable cost, while thechildren have gone without Mr. Power’s financial assistance. Ms. Power is entitled to her costs and Mr. Power is to be sanctioned if heignores this obligation.

24 . A costs order has been prepared and is enclosed. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)