Fraser v. Fraser, 2016 NSSC 376

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Fraser v. Fraser , 2016 NSSC 376 ENDORSEMENT March 1, 2016 RE: Sherry Ann DeBaie Fraser v. Warren Ross Fraser 1201 - 068222 (093261) / SFHMCA 089444 Appearances • Half day hearing of motion pursuant to rule 82.2 to re-open the Corollary Relief proceeding as the respondent failed to disclose to the Petitioner that on June 18, 2014 he had encumbered the matrimonial home (Royal Bank of Canada Judgement in the approximate amount of $13,163.83). o February 19, 2015 motion hearing request for adjournment on behalf of Warren Fraser.

Adjournment granted. o March 6, 2015 review scheduled. Counsel for Warren Fraser requested time to review the proposed order with his client. Legal counsel for Ms. DeBaie indicated she was not available to return for a motion hearing scheduled on April 14, 2015 and requested the matter be scheduled to another day. o March 30, 2015 motion hearing scheduled to proceed. Agreement reached.

Respondent agreed to pay the debt, and if the debt is not paid resulting in the Petitioner having to pay the debt the parties agreed the Respondent would owe the Petitioner an equivalent sum in the form of a lump sum spousal support order payable forthwith. It was agreed that a new order may need to be drafted to quantify the amount. Legal counsel for Ms. DeBaie and for Mr. Fraser agreed Request for costs based legal fees incurred as a result of Warren Fraser’s actions, on a hearing of one hour duration. Total costs requested: $1,114.50.

Decision : Warren Fraser shall pay Sherry Fraser costs of $250.00 on or before March 30, 2016.

Reasons : [ 1 ] The Respondent failed to disclose to the Petitioner that on June 18, 2014 he had encumbered the matrimonial home (Royal Bank of Canada Judgement in the approximate amount of $13,163.83), as a result the Applicant incurred unexpected legal fees. [ 2 ] The motion hearing required approximately one hour. [ 3 ] The most significant issue at the hearing was non - disclosure and resultant reliance to the Applicant's detriment. [ 4 ] The Applicant was successful. [ 5 ] Civil Procedure Rule 77 .03(3) provides that “Cos ts of a proceeding follow the result”. Costs are in my discretion. A decision

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.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 ., 200 4 BCSC 65 ].” [ 7 ] The Respondent did consent to a Variation Order to address the need for him to take responsibility for the debt to the Royal Bank of Canada in the approximate amount of $13,163.83. [ 8 ] Civil Procedure Rule 77.02(1) states that I “may, at any time, make any order about costs [I] am satisfied will do justice between the parties.” [ 9 ] Although costs were not specifically pleaded, pursuant to Civil Procedure Rule 77.02(2) I have a general discretion to award costs so as to do justice between the parties. [ 10 ] Having regard to steps which needed to be taken by the Application, the duration of the motion hearing, the non-disclosure by the Respondent but consent of the Respondent to address the issue, I order Warren Fraser to pay Sherry DeBaie Fraser costs of $$250.00 by March 30, 2016.

This am ount is inclusive of any disbursements. Cindy G. Cormier, J.S.C. (F.D.)