2021 NSSC 282, 2021 NSSC 282

Supreme Court of Nova Scotia (Family Division) Citation: SS v JG , 2021 NSSC 282 SS v. JG September 27, 2021 SFSNMCA - 093360 • Cassandra Lilley, Counsel for SS • JG, Self-Represented Decision: 1 . This is a decision on costs flowing from a written decision rendered on July 21, 2021 in relation to SS and JG. That decision dealt with parenting arrangements and child support, both retroactively and prospectively, as well as a claim for special expenses. The parties had until August 30, 2021 to file written submissions on costs. 2 . Counsel for SS seeks costs in the amount of $7,000 payable directly to SS.

This figure is comprised of court costs of $2,000 per day multiplied by 3.5 court days. SS continues to be represented by Nova Scotia Legal Aid. 3 . JG did not file any submissions in relation to costs. Position of SS 4 .

SS submits that costs are justified because: • She was the successful party. • JG advanced an unrealistic parenting plan given: o The child, LG, had been in her primary care since 2018 and JG’s parenting of LG during that time was largely restricted because of JG’s assault upon LG. o LG, aged 13, had clearly expressed through a Voice of the Child Report, a desire to remain in SS’s primary care and to have discretion about whether to overnight with his father, JG. • JG demonstrated a lack of respect for the rules of the Court in terms of evidence and procedure resulting in the misuse of court time and the unnecessary consumption of public resources. • JG rejected a formal Offer to Settle the contents of which were more favorable to JG than the ultimate decision of the Court.

Position of JG

• JG did not advance a position in relation to costs. Law 5 . Nova Scotia Civil Procedure Rule 77 governs awards of costs in matters before the Supreme Court of Nova Scotia. 6 . Costs are in the discretion of the Court. A successful party is generally entitled to costs and a decision not to award costs must be principled and reasoned. The Court should also consider any Offers to Settle that have been exchanged between the parties. Gagnon v. Gagnon , 2012 NSSC 137 . 7 .

The Nova Scotia Court of Appeal confirmed the principles to be applied when determining costs noting the overall mandate of the Court when ordering costs is to "do justice between the parties." Armoyan v. Armoyan , 2013 NSCA 136 . 8 . Counsel for SS cited Gomez v. Ahrens , 2015 NSSC 3 in which Justice B. MacDonald addressed the issue of awarding costs in parenting cases (para. 16): … Many parents want to have primary care or at the very least shared parenting of his or her children but that desire must be tempered by a realistic evaluation about whether his or her plan is in the best interest of the children.

The potential for an unfavorable cost award has been suggested as a means by which those realities can be bought to bear upon the parent’s circumstances. 9 . The Nova Scotia Legal Aid Act , R.S., c. 252 speaks to cost awards in ss. 22 and 23. Section 23(5) states that all costs ordered by a court to be paid to an individual who has received legal aid are the property of the Nova Scotia Legal Aid Commission and must be paid to the Commission. 10 . In Chisholm v.

Chisholm , 2016 NSSC 325 , Justice MacLeod-Archer awarded costs to a party represented by Nova Scotia Legal Aid noting “the service comes at a cost to the public” (para. 15). 11 . In McNeil v. Christie , 2017 NSSC 247 , Justice MacLeod-Archer ordered costs under Tariff C in a fact situation akin to this case. Justice Forgeron, in Nova Scotia (Community Services) v. K.M. , 2021 NSSC 10 , cited the McNeil v. Christie decision and endorsed the principle that the involvement of Legal Aid does not preclude a cost order from being made. Decision 12 .

I am satisfied that SS’s request for costs under Tariff C in the amount of $7,000 is reasonable and will do justice between the parties in the circumstances of the case. 13 . SS was entirely successful in her claim and put forward a reasonable Offer to Settle. JG persisted in advancing an unrealistic parenting plan. Significant public resources were expended in this matter. 14 .

I decline to order costs payable directly to SS because I interpret s. 23(5) of the Nova Scotia Legal Aid Act , to mean that any costs so ordered are the property of the Nova Scotia Legal Aid Commission and I find that it is appropriate that costs awarded in this case compensate that public resource. 15 . I exercise my discretion to award costs in the amount of $7,000 payable by JG to the Nova Scotia Legal Aid Commission. I ask Counsel for SS to kindly prepare the Order.

16 . Order to follow. Marche, J.