2022 NSSC 27, 2022 NSSC 27

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation : Simmons v. Bennett , 2022 NSSC 27 ENDORSEMENT January 18, 2022 De’Angela Simmons and Marcus Bennett 2019 SFHPSA-116749 Ms. Simmons was represented by Hannah Rubenstein Mr. Bennett was initially a self represented litigant, then he was represented by Peter Duke, then by Nadia Shivji. He then filed a Notice to Represent himself prior to trial. • November 28, 2019, Ms. Simmons filed a Notice of Application re: custody and parenting arrangements and an emergency motion for travel.

The emergency issue related to travel was resolved by the parties; • December 20, 2019, Mr. Bennett filed a Notice of Application re: custody, parenting arrangements, parenting time, and interaction; • February 19, 2020, the parties attended conciliation. Ms. Simmons was subject to a no contact order through provincial court (criminal matter), no resolution regarding decision making or parenting time. Ms. Simmons was seeking sole decision making and no overnight parenting. Her proposal for interim parenting time was not accepted by Mr.

Bennett, he was seeking shared decision making and parenting time; • February 10, 2020, the parties appeared before me. The issues raised before the court were parenting time and child support. The parties consented to an interim parenting arrangement. Mr. Bennett was directed to file his financial information; • April 24, 2020, the parties appeared via telephone. Ms. Simmons was dialing in from NS while Mr. Bennett was not. Ms. Simmons requested retroactive child support to 2014. Mr. Bennett was directed to file his financial information for at least three years, while Ms.

Simmons was directed to review the case law (DBS) and file a letter explaining why she believed Mr. Bennett should pay child support back to 2014. Hearing date was

schedule for September 21, 2020; • September 21, 2020, a hearing was scheduled before me. Ms. Simmons retained Ms. Rubenstein. Mr. Bennett did not file his financial information as directed and he requested an adjournment for DNA testing to be completed. Ms. Rubenstein requested an order for costs in the amount of $500. Orders for costs and DNA testing were granted and the matter was adjourned for six weeks; • November 2, 2020, a conference was scheduled before me. Issues were raised regarding Mr.

Bennett filing documents late and the parties’ ability to comply with the interim parenting provisions due to a peace bond. Efforts were made to determine interim arrangements for parenting. No agreement was reached. The matter was adjourned; • November 20, 2020, a conference was scheduled before me in anticipation of receiving the results of DNA testing. No results were received and no agreement reached. • January 12, 2020, pre-trial conference was scheduled before me. Mr. Bennett sought permission from the Court to have his aunt assist him. Ms. Simmons did not object and permission was granted.

The parties came to an agreement regarding a further interim parenting arrangement. Mr. Bennett advised he would be leaving Nova Scotia in February 2021. • February 2, 2021, an interim hearing was heard before me. Ms. Simmons was granted interim sole decision making. The parties reached agreement on some issues: a third party information order allowing Mr. Bennett to obtain information related to the parties’ child; specified parenting time; travel provisions; summer parenting time for Mr. Bennett. The court ordered interim child support of $274 to be paid by Mr. Bennett to Ms. Simmons commencing March 1, 2021.

Deadlines for costs submissions were provided. • March 8, 2021, a conference was scheduled before me. Mr. Bennett retained Mr. Duke to represent him. Filing submissions on costs were extended for Mr. Bennett. Counsel requested one and a half days for trial. Filing deadlines were provided. • April 23, 2021, an organizational pre-trial was scheduled before me. Given that Mr. Bennett was now represented by legal counsel, the parties requested an adjournment to attempt to negotiate terms of an agreement. Once again Mr.

Bennett’s pending move back to Ontario was raised. • May 6, 2021, a further organizational pre-trial conference was held before me. • May 11, 2021, Mr. Bennett filed a Notice of Intention to Act on his Own. • May 25, 2021, trial held and an oral decision rendered. Sole custody and decision making was granted to Ms. Simmons. Terms for Mr. Bennett’s parenting time were confirmed from January 2021. Mr. Bennett was imputed an income of $35,000 to the end of December 2021 and $40,000 as of January 1, 2022. He was found to be underemployed. He was ordered to pay a retroactive award of $11,022. Ms.

Simmons was given until June 25, 2021, to file submissions on costs, and Mr. Bennet was given permission to file his response one month later, by July 25, 2021.

Request for costs of Tariff A, scale 3, based on a hearing of 1 day, following a final hearing. Total costs requested: $5,000 + $2,000 (1day of trial) = $7,000.00. Decision: Mr. Bennett shall pay Ms. Simmons costs of $7,000 on or before March 1, 2022. Reasons: 1. At the final hearing the court granted Ms. Simmons sole custody and final decision making. The court confirmed theparenting provisions the parties had initially agreed to in January 2021, but Mr. Bennett requested the court revisit in May 2021. Ms.Simmons was successful in that the custody and parenting terms were finalized. Ms.

Simmons requested the court impute an income of$46,259.20 to Mr. Bennett. The court imputed an income of $35,000, until the end of 2021, and $40,000 as of January 1, 2022, as he wasfound to be underemployed. The court ordered Mr. Bennett to pay a retroactive award of $11,022 as requested by Ms. Simmons. Ms.Simmons was more successful on the issues of imputing income to Mr. Bennett and the award of retroactive child support. 2. The hearing required 1 day. 3. The most significant issues at the hearing were custody, parenting and child support. 4. Ms. Simmons was most successful. 5.

Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. Costs are in my discretion. Adecision not to award costs must be principled. 6. I may consider a party’s ability to pay costs in making a costs award. In M.C.Q. [sic M.Q.C.] v.

P.L.T., 2005 NSFC 27, Judge Dyer reminded me 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”.” If this happens, he said,“Fairness may dictate that the successful party’s recovery of costs not be thwarted by later pleas of inability to pay. [See A.E.M. v.R.G.L., 2004 BCSC 65 ].” 7. Ms. Simmons’ legal costs were $17,041.08. Costs of $500 were awarded on September 21, 2020, when Ms. Simmons’legal counsel first appeared in the matter and Mr.

Bennett had failed to file his financial information in advance of the hearing scheduledon that date. Eight further appearances were scheduled before the final hearing took place. Throughout the process Mr. Bennett did notfollow the court’s direction regarding filing information, he changed his position after agreements were reached, asking to litigate issuesalready agreed to or decided. Mr. Bennett created significant additional work and delay for all concerned. 8. Ms. Simmons filed her costs submissions within the time frame provided. Mr. Bennett did not file a response. Ms.Simmons pointed out that “Mr.

Bennett has not made a motion pursuant to Civil Procedure Rule 77.04”. Per Forgeron J, in Nurse v.Holden, 2020 NSSC 110. “Otherwise, difficult financial circumstances do not preclude an award of costs”. In any event, Ms. Simmonshas argued, and I agree that Mr. Bennett “has not provided sufficient evidence to support a claim that he is unable to pay costs”. 9. To apply Tariff A, I must know the amount involved in the case.

According to Tariff A, where there’s a substantial non-monetary issue involved, the amount involved is determined having regard to the complexity of the proceeding and the importance of theissues. 10. In both Collins v. Speight, (NS SC), and in Wyatt v. Franklin, (NS SC), JusticeGoodfellow concluded that the amount involved in two and one-half day trials was $45,000.00. Collins v. Speight was a case involving adispute over an entitlement to a right of way and Wyatt v. Franklin was a land dispute. Justice Goodfellow described both as notcomplex. Later, in Toronto Dominion Bank v.

Lienaux, (NS SC), Justice Goodfellow suggested a general rule forcases where a substantial non-monetary issue was involved. He said that he treated each day or part day of the trial as equivalent to$15,000.00 for the purpose of determining the “amount involved”. 11. In 2007, Justice Lynch reviewed this general rule in Jachimowicz, 2007 NSSC 303 , at paragraph 26. There, theparenting trial took approximately thirteen days: six days of evidence from the initial trial, five days of review evidence and numerousother appearances which added approximately two more days.

She adjusted the daily equivalent amount from $15,000.00 to $20,000.00“to reflect the increased costs of litigation.” 12. Pursuant to Civil Procedure Rule 77.02(2) I have a general discretion to award costs so as to do justice between the parties.

13 . Having regard to tariff A, and scale 3, based on the one-day hearing, and the significant delay caused by Mr. Bennett leading up to the hearing, I order Mr. Bennett to pay Ms. Simmons costs of $7,000 by March 1, 2022. This amount is inclusive of all disbursements. Cindy G. Cormier, J.S.C.(F.D.)