2019 NSSC 120, 2019 NSSC 120

Supreme Court of Nova Scotia (Family Division) Citation : Tobin v. Hurley , 2019 NSSC 120 ENDORSEMENT Katherine Tobin v. Thomas Hurley April 5, 2019 SFSNMCA 101160 • Candee McCarthy for Katherine Tobin • William Burchell for Thomas Hurley Decision: Mr. Hurley is ordered to pay Ms. Tobin costs under Tariff A in the amount of $12,250.00. Reasons: 1 . This matter came before the court for hearing on Ms. Tobin’s claim for unjust enrichment and an interest in certain properties owned by Mr. Hurley. I rendered a decision on December 11, 2018 in which I granted Ms.

Tobin compensation for her contribution to the home, as well as retroactive and ongoing spousal support. Ms. Tobin was awarded a lump-sum of $28,025. This included retroactive spousal support in a lump-sum of $10,000 was awarded, plus ongoing spousal support in the amount of $300 per month continuing until December 1, 2022. 2 . I indicated in my decision that I would hear counsel on the issue of costs if they can not agree. Ms. Tobin’s submissions were received on March 21, 2019. No submissions have been received from Mr. Hurley’s counsel. 3 . Ms.

Tobin’s counsel has brought to my attention two settlement offers which were made to Mr. Hurley. One was made in advance of the hearing, while the other was made after the release of my decision. It was essentially a reiteration of the original settlement proposal. Ms. Tobin also offered to forego costs if the offer was accepted. No response to that offer was received. 4 . Ms. Tobin now seeks costs according to Civil Procedure Rule 77 and the decision in Armoyan v Armoyan , 2013 NSCA 136 in which the court laid out the principles to be applied when determining costs. She also relies on related case law. 5 .

I will not restate the principles applicable, as they are well known and well canvassed in the case law. I accept that Ms. Hurley was the successful party in the hearing, and that her offer to accept a lump-sum of $50,000 is closely equivalent to the amount I awarded, if one calculates the total amount of prospective spousal support payable. 6 . Ms. Tobin’s counsel has provided a copy of her legal account rendered to Ms. Tobin, both before the offer and after. Based on the Armoyan calculation, her claim for costs amounts to $13,248.56. 7 . She proposes an alternative calculation under Tariff A.

The amount involved falls within the $25,000 - $40,000 range. Using the basic scale of $6,250 plus $2,000 for each day of trial, she calculates the award at $12,250. She notes that the parties attended a settlement conference, in addition to the 2.5 days of hearing. 8 . I am not satisfied that the Armoyan “rule” should be applied to my analysis of costs in this matter. Ms. Tobin made a reasonable offer well in advance of trial. The total amount awarded to her in my decision is $52,725 including prospective support (not reduced for tax implications).

Her offer to settle was for a lump-sum of $50,000 in full satisfaction of all spousal support and property claims, exclusive of pensions. However, I made no pension division in my decision. So, her offer may not have been a better deal for Mr. Hurley. 9 . I am satisfied that costs under Tariff A for the amount involved will do justice between the parties and provide Ms. Tobin with a reasonable contribution towards her costs. I am prepared to use the basic scale as proposed by Ms. Tobin where the hearing took longer than necessary, because of the unreasonable position taken by Mr.

Hurley with respect to the online dating ad sites, and his lack of income disclosure. 10 . I award costs under Tariff A in the amount of $12,250.00, which represents the basic scale amount for the amount involved, plus $2,000 for each day court. Although the hearing did not take 3 full days, the parties attended a ½ day settlement conference. As well, this figure is inclusive of disbursements, which are close to $200 alone. 11 . Counsel for Ms. Tobin will prepare the order for my endorsement. MacLeod-Archer, J.