MacPherson v. Williams, 2019 NSSC 76

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MacPherson v. Williams , 2019 NSSC 76 ENDORSEMENT Diane MacPherson v. Derek Williams March 3, 2019 FATMCA 097030 • Karen Killawee for Diane MacPherson • Andrea Pierce for Derek Williams Decision: Mr. Williams is ordered to pay Ms. MacPherson costs of $15,750.00 by September 5, 2019. Reasons: 1 . Ms. MacPherson advanced an unjust enrichment claim (seeking an unequal share of the parties’ property) and a claim that the parties had reached an agreement which should be upheld. She sought continued child support and spousal support.

At the end of the hearing, she withdrew her claim that the parties had reached an agreement. 2 . The application was heard over three days. 3 . Ms. MacPherson succeeded in her claim of unjust enrichment, through she failed to achieve an unequal share of the parties’ property. A possible claim to Mr. Williams’ pension remains outstanding. She was awarded child support and indefinite spousal support. 4 . Mr. Williams failed in his efforts to dismiss Ms. MacPherson’s unjust enrichment claim. He failed in his request to make child support payments payable directly to the couple’s daughter.

He failed in his request for a termination date for his spousal support payments. He failed in his request to keep confidential the details of his personal injury accident settlement discussions. 5 . Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. Costs are in my discretion. A decision not to award costs must be principled. 6 . 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.” 7 . Mr. Williams argues that the parties’ success was divided, and each should bear its own costs. 8 .

Ms. MacPherson says she was the successful party and should have costs, calculated as if each day of trial was worth $20,000.00, and based on something greater than the Scale 2. 9 . Mr. Williams admits Ms. MacPherson was “substantially successful” with respect to her unjust enrichment claim. 10 . On the retroactive support issues, Ms. MacPherson achieved an overall result that was better than Mr. Williams’ offer by litigating. a. Ms. MacPherson received child support of $6,478.00 for 2017. Mr. Williams offered child support of $7,416.00 for 2017. Ms. MacPherson received $938.00 less. b. Ms.

MacPherson received child support of $6,276.00 for 2018. Mr. Williams offered $6,384.00. Ms. MacPherson received $108.00 less. c. Mr. Williams wanted to reduce spousal support payments to $659.00 for April – December 2017, and to $789.00 from January – June 2018. In total, Ms. MacPherson would have received $10,665.00 during this period if she accepted Mr. Williams’ offer. I dismissed his request and Ms. MacPherson received $15,000.00. d. Overall, Ms. MacPherson was awarded $3,289.00 more than Mr. Williams offered in retroactive support.

11 . In terms of prospective support, Ms. MacPherson received child support of $386.00 each month. It’s uncertain exactly when child support will end. Mr. Williams offered $14.00 more each month but required child support end on June 1, 2019. If child support continues just one month more, Ms. MacPherson will be better off with the hearing result. 12 . Mr. Williams offered lump sum spousal support of $13,300.00. Ms. MacPherson was awarded indefinite monthly support of $350.00. The relative success of either position can only be assessed once Ms.

MacPherson has received all the support payments she is entitled to receive. It’s not possible to predict when this will be. 13 . This was a monetary case. I find the amount in issue to be in the range of $65,000.00 to $90,000.00 having regard to the value of the house, RRSPs, support arrears and ongoing support payments. The basic tariff is $9,750.00. 14 . Of course, $2,000.00 is to be added to the amount calculated under the tariff for each day of trial. I find the trial was three days. 15 . Ms. MacPherson argues that there are factors which merit using Scale 3: Mr.

Williams’ contest over the issue of arrears; his lack of credibility at the hearing; and his agreement to an equal division at case management and later withdrawal of this position. I believe this is balanced by Ms. MacPherson’s assertion that the parties reached a final agreement in 2016 and her abandonment of this position only when the hearing ended. I am not inclined to exceed Scale 2. 16 . Based on Scale 2, and with the addition of $2,000.00 per day of trial, I order Mr. Williams pay Ms. MacPherson costs of $15,750.00 by September 5, 2019. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)