Wood v. Debaie-Musolino, 2022 NSSC 113

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Wood v. Debaie-Musolino , 2022 NSSC 113 Between: PAUL ANTHONY WOOD Applicant v.

AMBER MAY DEBAIE-MUSOLINO, BRENDAN CARTER Respondents ENDORSEMENT April 21, 2022 Paul Wood and Amber May Debaie-Musolino and Brendan Carter SFHPSA - 120725 • August 26, 2021 – court conference • October 13, 2021 – interim hearing between 14:02:57 and 15:57:09, 1 hour and 55 minutes. • Cost submissions filed October 20, 2021 Paul Wood requests party and party costs of $2000.00 (a substantial recovery of “his legal fees of approximately $2,620” from Amber May Debaie-Musolino, based on a hearing of less than one-half day, arguing that the tariffs are not the best way to determine costs in this case.

He is not seeking costs from Brendon Carter. Decision: Amber May Debaie-Musolino shall pay costs of $2000.00 to Paul Wood. Ms. Debaie-Musolino shall pay $200.00 per month starting May 1, 2022, with the full sum of $2000.00 due by February 1, 2023. Reasons: 1 . Generally, Paul Wood sought the following relief: joint custody and primary care of both children who are the subjects of this litigation. Although initially Mr. Wood sought final decision making in relation to the two subject children, after some discussion, Mr. Wood took the position that joint decision making was a more appropriate request. Mr.

Wood also sought an order allowing Amber May Debaie-Musolino parenting time with both children every second Thursday through to the following Monday morning, and the table amount of child support. 2 . Amber May Debaie-Musolino sought to relocate the children from the Halifax Regional Municipality to Hants County. She sought an order whereby Mr. Wood would have parenting time with their youngest child every second weekend and with their eldest child every weekend. She also sought the table amount of child support. 3 .

Paul Wood had stood in the place of a father for the eldest child who is the subject of this litigation for more than ten years. Amber May Debaie-Musolino facilitated little or no contact between that child and his biological father or his biological father’s family throughout those years. 4 . Upon Amber May Debaie-Musolino separating from Paul Wood, she re-introduced the eldest child’s biological father to him. I find her decision to reintroduce the eldest child’s biological father to the child was an attempt to minimize Mr. Wood’s long- standing relationship with the child.

The eldest child’s biological father was served with notice of the application. 5 . At the time the interim motion was heard, the children had been ordinarily resident in the Halifax Regional Municipality for several years, including attending school in that community. Amber Debaie-Musolino’s proposal to move the children to Hantsport to live primarily with her and her new partner and to transport the children into the Halifax Regional Municipality to school from Hants County every day was not considered to be in the children’s best interests.

6. I found it was in the eldest child’s best interests to be given an opportunity to provide his opinion about his circumstancesby way of a Voice of the Child Report. The parties consented to the preparation of a Voice of the Child Report at a cost of $2,052.25. 7. The hearing required less than a half day (1 hour and 55 minutes). 8. The most significant issue at the hearing was Amber Debaie-Musolino’s request to relocate ordinary place of residence, theMunicipality of Halifax. 9. Paul Wood was granted primary care of the children. Amber Debaie-Musolino was not permitted to relocate the children. 10.

As has been noted by this Court on numerous occasions: In both Collins v. Speight, (NS SC), and in Wyatt v. Franklin, (NS SC), Justice Goodfellowconcluded that the amount involved in two and one-half day trials was $45,000.00. Collins v. Speight, (NS SC), was acase involving a dispute over an entitlement to a right of way and Wyatt v. Franklin, (NS SC), was a landdispute. Justice Goodfellow described both as not complex. Later, in Toronto Dominion Bank v. Lienaux, (NS SC),Justice Goodfellow suggested a general rule for cases where a substantial non-monetary issue was involved.

He said that he treated eachday or part day of the trial as equivalent to $15,000.00 for the purpose of determining the “amount involved.” In 2007, Justice Lynch reviewed this general rule in Jachimowicz, 2007 NSSC 303 , at paragraph 26. There, the parenting trialtook approximately thirteen days: six days of evidence from the initial trial, five days of review evidence and numerous otherappearances which added approximately two more days. She adjusted the daily equivalent amount from $15,000.00 to $20,000.00 “toreflect the increased costs of litigation.” 11.

I have considered the complicating factors raised by Mr. Wood in his submissions on costs, including: a. After the parties separated, Ms. Debaie-Musolino introduced the eldest child to his biological father. I find that on balance ofprobabilities Ms. Debaie-Musolino introduced the eldest child to his biological father, Mr. Carter, after years of discouraging anyinvolvement between the eldest child and his biological father, to gain an advantage in litigation. Due to the unusual circumstances, theissue of relocation was heard at an interim hearing and a Voice of the Child Report was ordered for the eldest child.

I find Ms. Debaie-Musolino’s behaviour unnecessarily complicated the litigation. b. Mr. Carter was served with notice of the interim hearing. He participated at the hearing and to his credit he took a child centeredapproach to the litigation. His position was that it should be up to the child in question to decide whether he wanted to develop arelationship with Mr. Carter. Appropriately, in this case, Mr. Carter did not want to intrude on the child’s relationship with Mr. Wood. c. Mr. Wood filed an application to prevent Ms. Debaie-Musolino from relocating with the children from their ordinary place ofresidence.

Ms. Debaie-Musolino claimed her plan was in the children’s best interests and that the children would be harmed if she wasnot permitted to do so in a timely way. d. Despite Ms. Debaie-Musolino’s insistence that the matter be heard as soon as possible, she failed to comply with filing directionsand did the following: i. Ms. Debaie-Musolino failed to disclose her affidavit evidence as directed by the Court, leavingno time for Mr. Wood to review her evidence before having to respond at the hearing. ii. Ms. Debaie-Musolino requested Mr. Wood arrange for a witness to be present for cross-examination. Mr.

Wood incurred legal expenses related to witness preparation, however Ms. Debaie-Musolino chose not to cross-examine the witness. 12. At the hearing, I found Ms. Debaie-Musolino lacked a viable plan and/or a plan with a focus on the children’s needs or theirbest interests. Mr. Wood was successful in proving his plan was focussed on the best interests of the subject children.

13. Civil Procedure Rule 77.02(1) states that I “may, at any time, make any order about costs as [I am] satisfied will do justicebetween the parties.” 14. Mr. Wood has asked that I “depart from the Tariff” as this matter “does not fall neatly under Tariff “A”. The Nova ScotiaCourt of Appeal in Armoyan (supra), found in part that: “the propriety of a lump sum award may be tested by comparing the proposed tariff award to the actual legal fees and expenses. Arecovery of $34,723.00, does not approach the “substantial contribution” that Justice Freeman contemplated in Williamson.

Therefore, inmy view, a lump sum is appropriate. … 15. Our Court has found that: To apply Tariff A, I must know the amount involved in the case. According to Tariff A, where there’s a substantial non-monetary issueinvolved, the amount involved is determined having regard to the complexity of the proceeding and the importance of the issues. Including a review of the time spent in court. 16.

Notionally, using the Rule of Thumb approach and relying on Tariff A: the amount for a hearing of almost two hours (1 hourand 55 minutes) is less than $25,000 ($8,000 for two hours); with a scale 3 for complexity $5000 / 5 possibly hours = $1000 per hour / 2hours = $2000 + ($2000 per day / 5 possible hours) = $400 = $2,400. 17. Mr. Wood asked me to grant party and party costs quoting Smith v. Smith, [2015] N.S.J., NO 393, wherein B.A. MacDonald(as she was then) stated in part: A successful party is generally entitled to a cost award.

To receive a cost award a party is not required to have receive all of the reliefrequested. Substantial success is sufficient… … The amount of a party and party cost award should represent a substantial contribution towards the reasonable expenses of presentingand defending the proceeding but should not amount to a complete indemnity. A reasonable

interpretation of this language suggests anamount more than 50% and less than 100% of a lawyer’s reasonable bill. 18. 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. 19. 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 ].” 20. Pursuant to Civil Procedure Rule 77.02(2), I have a general discretion to award costs so as to do justice between the parties. 21.

Having regard to Tariff A, an amount involved of approximately $8,000 per the rule of thumb approach, for a hearing lastingalmost two hours, with additional complications including: an additional litigant; a Voice of the Child Report; evidence filed late; andthe need to prepare a witness who was subsequently not called to testify, I order Ms. Debaie-Musolino to pay $2,000 in costs at $200 permonth starting May 1, 2022. This amount is inclusive of all disbursements. Cindy G. Cormier, J.S.C.(F.D.)