Doucet v. Doucet, 2014 NSSC 196

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Doucet v. Doucet, 2014 NSSC 196 Date: 20140609 Docket: SFHMCA-083554 Registry: Halifax Between: Norman Doucet Applicant v. Steven Doucet and Tara Doucette Respondents Judge: The Honourable Justice Beryl A. MacDonald Written Submissions: May 13, 2014 from Steven Doucet; May 14, 2014 from Tara Doucette; May 21, 2014 from Norman Doucet Counsel: Eugene Y. S.

Tan, counsel for Norman Doucet; Kim Johnson, counsel for Steven Doucet; Tara Doucette, self-represented By the Court: [1] On November 9, 2012 Norman Doucet filed a Notice of Application pursuant to the Maintenance and Custody Act in which herequested leave to apply for and access with his nephew, who is the son of Stephen Doucet and Tara Doucette. On March 11, 2014 after1 ½ days of hearing I provided an oral decision to the parties. Stephen Doucet and Tara Doucette were the successful parties in thatproceeding. Leave to apply for access was denied. Stephen Doucet and Tara Doucette request a cost award.

Stephen Doucet wasrepresented by counsel; Tara Doucette was self-represented. [2] When deciding whether to award costs the Civil Procedure Rules provide guidance as do several decisions, including Landymore v. Hardy (1992), (NS SC), 112 N.S.R. (2d) 410 (T.D.); Campbell v. Jones et al. (2001), 2001 NSSC 139, 197 N.S.R. (2d) 212 (T.D.); Grant v. Grant (2000), 2002 NSSF 2 , 200 N.S.R. (2d) 173 (T.D.); Bennett v. Bennett(1981), (NS SC), 45 N.S.R. (2d) 683 (T.D.); Kaye v. Campbell (1984), (NS CA), 65 N.S.R. (2d)173 (T.D.); Kennedy-Dowell v. Dowell, 2002 CarswellNS 487; Urquhart v.

Urquhart (1998), (NS SC), 169 N.S.R.(2d) 134 (T.D.); Jachimowicz v. Jachimowicz (2007), 2007 NSSC 303 , 258 N.S.R. (2d) 304 (T.D.); Armoyan v Armoyan, 2013NSCA 136; Crewe v. Crewe, 2008 NSCA 115; Leigh v. Milne, 2010 NSCA 36; Jahn-Cartwright v. Cartwright, 2010 ONSC 2263. [3] Several principles emerge from the Rules and the case law: 1. Costs are in the discretion of the Court. 2. A successful party is generally entitled to a cost award. 3. A decision not to award costs must be for a “very good reason” and be based on principle.

4 . Deference to the best interests of a child, misconduct, oppressive and vexatious conduct, misuse of the court’s time, unnecessarily increasing costs to a party, and failure to disclose information may justify a decision not to award costs to an otherwise successful party or to reduce a cost award. 5 . The amount of a party and party cost award should “represent a substantial contribution towards the parties’ reasonable expenses in presenting or defending the proceeding, but should not amount to a complete indemnity”. 6 .

Although self-represented litigants are entitled to costs, such costs are not to be calculated on the same basis as costs for litigants who retain counsel. Courts have traditionally segregated litigants into three categories based on the indemnity principle, namely:

a) the represented litigant, who, provided that an entitlement to costs was established, was compensated for both costs (disbursements) and counsel fees;

b) the lawyer-litigant, who recovered all costs (disbursements) except for counsel fees (since he could not be indemnified for fees he had not paid to another); and

c) the lay litigant who, if entitled to costs, was awarded disbursements onl y. This has been modified to provide indemnity costs to the self-represented litigant who demonstrates that he or she did the work ordinarily done by a lawyer. If a self-represented litigant incurred an opportunity cost by foregoing remunerative activity while doing such work, this is a factor to consider but lost wages due to court attendances by self-represented litigants who would ordinarily be in attendance at court in any event are not a factor. 7 .

Unsuccessful litigants who are represented by legal aid are not immune to a cost award. 8 . The ability of a party to pay a cost award is a factor that can be considered ; but as noted by Judge Dyer in M.C.Q. v. P.L.T. 2005 NSFC 27 : “Courts are also mindful 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”. In such cases, fairness may dictate that the successful party’s recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v.

Lipon , 2004 BCSC 65 ].” 9 . The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 10 . In the first analysis the “amount involved”, required for the application of the tariffs and for the general consideration of quantum, is the dollar amount awarded to the successful party at trial. If the trial did not involve a money amount other factors apply. The nature of matrimonial proceedings may complicate or preclude the determination of the “amount involved”. 11 .

When determining the “amount involved” proves difficult or impossible the court may use a “rule of thumb” by equating each day of trial to an amount of $20,000 in order to determine the “amount involved” . 12 . If the award determined by the tariff does not represent a substantial contribution towards the parties’ reasonable expenses “ it is preferable not to increase artificially the “amount involved”, but rather, to award a lump sum” . However, departure from the tariff should be infrequent. 13 .

In determining what are “reasonable expenses”, the fees billed to a successful party may be considered but this is only one factor among many to be reviewed. 14 . When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and also examine the reasonableness of the offer. Stephen Doucet requests a cost award based upon the Tariff of Costs and Fees, Tariff “A” , Scale 2 (Basic) using an amount involved between $25,000.00 and 40,000.00 resulting in basic costs at $6,250.00.

Added to his amount is the $2,000.00 per day of hearing for a total amount of $9,250.00. The “rule of thumb” approach to proceedings in the Family Division suggests assigning an “amount involved” at $20,000.00 per day of hearing. This hearing was more than one day and for this reason counsel for Stephen Doucet used the table amount provided for an amount involved between $25,000.00 and $40,000.00. I consider this to be a correct application of the “rule of thumb” approach. Counsel then applied the additional $2,000.00 per day of hearing charging one half that amount for the concluding half day of the hearing.

I take no issue with this approach but the question remains, is this an

appropriate cost award in the circumstances of this case? [4] Counsel for Norman Doucet has argued this proceeding is more properly categorized as an “Application Heard in Chambers” attracting Tariff “C” costs of $2,000.00 per full day of hearing. Counsel suggests this proceeding was “more akin to a true chambers motion” because it was “a preliminary leave application”. [5] This proceeding was commenced, as was required, by a Notice of Application for leave and access. Because these issues are often tried in one hearing parties provide extensive affidavit evidence relevant to both issues.

This likely is because our procedure for leave attempts to save the parties the expense of two hearings. However, this results in fewer savings to the parties than might result from a

summary motion procedure on affidavit evidence without cross-examination. While that may be a preferable procedure for leave applications it is not applied in our jurisdiction and cross-examination was requested and granted as is typical even when the proceeding is limited to the question of leave, as was the case in this proceeding.

Had I granted leave the access hearing would have been scheduled for another date and additional evidence could have been presented by the parties. [6] The leave hearing required a pre hearing conference and further instructions were necessitated when the original hearing date was adjourned in October. The October appearance was approximately 1 ½ hours. The final hearing was 1 ½ days and the parties returned for ½ hour when I provided my oral decision. This proceeding was more akin to a “trial” than a “motion”. [7] I have been informed about the likely legal fees to be paid by Steven Doucet.

The amount provided by Tariff “A” represents a substantial contribution towards his reasonable expenses but does not amount to a complete indemnity. He is awarded costs in the amount of $9,250.00. [8] Tara Doucette did not provide any material from which I can draw the conclusion she did the work ordinarily done by a lawyer. Affidavits filed by Tara Doucette and her spouse were prepared by counsel for Steven Doucet. Tara Doucette has requested compensation for her witness who was her spouse who lost time from his work because of his appearance in court to give testimony.

Expert witnesses are often compensated for time spent testifying and this can be a recoverable disbursement. There is an amount that a witness must receive when subpoenaed according to the Costs and Fees Act , R.S.N.S. 1989, c. 104. There is no information before me to suggest this amount was provided to Tara Doucette’s witness. Many witnesses appear for parties voluntarily and this appears to be the situation in respect to Tara Doucette’s spouse. Her request for costs in this proceeding is dismissed. Beryl A. MacDonald, J.