Darlington v. Moore, 2011 NSSC 425

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Darlington v. Moore, 2011 NSSC 425 Date: 20111117 Docket: SFHMCA-68167 Registry: Halifax Between: Michelle Darlington Applicant v. David Paul Moore Respondent LIBRARY HEADING Judge: The Honourable Justice Mona M. Lynch Heard: October 31, 2011 in Halifax, Nova Scotia Subject: Costs; Family Matter, Common Law Property, Failure to disclose by Respondent

Summary: The Applicant applied for custody, access, child maintenance, spousal maintenance, pension division and a division of common law property. The Respondent failed to provide complete financial disclosure and conducted himself in a manner which delayed and prolonged the proceeding. The father failed to respond to an offer to settle which was less than the amount awarded at trial. At trial the Applicant was awarded almost $600,000 in property, pension, retroactive child and spousal maintenance. Issue: What is the proper amount of costs to the Applicant?

Result: Using Tariff A and considering the extra expense caused by the Respondent ’ s lack of disclosure, failure to respond to an offer to settle and overall conduct costs awarded in the amount of $60,000 plus disbursements.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Darlington v. Moore, 2011 NSSC 425 Date: 20111117 Docket: SFHMCA-68167 Registry: Halifax Between: Michelle Darlington Applicant v. David Paul Moore Respondent Judge: The Honourable Justice Mona M. Lynch Heard: October 31, 2011, in Halifax, Nova Scotia Counsel: Peter Crowther, for the Petitioner By the Court: Background: [ 1 ] This is the decision on costs after a three day trial and numerous pre-trial motions.

The proceeding began on January 7, 2010 when the mother filed an application seeking custody, access, child maintenance and spousal maintenance, a division of the father ’ s pension and division and sale of real property and costs. As a result of a notice to disclose served on the father with the application, the

father filed some information with the court on February 3, 2010, however the information filed was not complete. [ 2 ] The mother filed an interim application for interim custody and child and spousal maintenance at the beginning of March 2010. The process server was unable to serve the father and an order for substituted service was granted to effect service on the father. The father filed a response to the application on April 21, 2010 and updated information with the assistance of counsel. The financial disclosure was still incomplete. [ 3 ] The interim matter was resolved on April 22, 2010.

Counsel for the mother wrote to counsel for the father on May 4, 2010 requesting further disclosure, however, no response was received. An interim order was issued on May 14, 2010. [ 4 ] A pre-trial conference was held on June 18, 2010. The father was now self-represented. The father was ordered to provide further disclosure, the family home was ordered appraised and the administrator of the father ’ s pension plan was ordered to provide the mother with information. A further pre-trial conference was held on August 26, 2010 and the father was ordered to provide the disclosure on or before October 29, 2010.

The trial dates were set for the end of March 2011 along with a further pre-trial conference in January 2011. [ 5 ] At the end of October 2010, the father filed some, but not all, of the material that he had been ordered to disclose. There were many items missing, including income tax returns, information about assets and liabilities of the company, bank account statements were missing pages and were not provided for the full time period which had been ordered. [ 6 ] On November 23, 2010 counsel for the mother wrote to the father requesting the missing disclosure along with further disclosure.

In this same letter the mother offered to accept $210,000 from the family home, an equal pension division for the period of cohabitation, child support of $1,441 a month, spousal support of $900 a month with a review in five years and $25,000 from RRSPs. The father did not respond to this letter. [ 7 ] At the January 17, 2011 pre-trial conference, filing deadlines were given and the matter was scheduled for a hearing to deal with disclosure on January 27, 2011.

On January 26, 2011 the father filed a letter seeking disclosure from the mother. [ 8 ] On January 27, 2011 the judge hearing the motion for disclosure directed disclosure from both parties to be filed and exchanged on February 11, 2011. The mother filed the information; the father did not. [ 9 ] On February 11, 2011 counsel for the father filed a letter asking for an extension of time to file material and an adjournment of the trial. This letter was placed in the file but not acted on as it was addressed to a judge who was not hearing the trial.

On the same date, the father filed a handwritten letter providing information on his medical insurance and requesting an apology from the judge who heard the motion for disclosure. [ 10 ] On March 17, 2011 a Motion for Directions was filed by counsel for the father requesting an adjournment of the trial as counsel was not available. The motion was heard on March 21, 2011. On March 21, 2011 counsel for the father had not yet met with the father. Counsel for the mother agreed to an adjournment of the trial on the condition that the father paid costs in the amount of $5,000.

The father would not agree to the pay the costs and the trial was not adjourned. [ 11 ] On the first day of the trial, March 28, 2011, the father filed a letter indicating that he would not be attending court in the Supreme Court of Nova Scotia, Family Division, on that day as he was required in the Nova Scotia Provincial Court. The trial commenced on March 28, 2011 without the father being present. [ 12 ] On March 29, 2011 the second day of the trial, the father appeared and indicated that he was in Provincial Court the day before on a personal matter.

The father indicated he wanted counsel, he waived his right to question witnesses and he refused to answer questions after taking the witness stand.

[13] On March 30, 2011 the father again refused to answer questions after taking the witness stand. The father made somesubmissions on the mother’s request for a preservation order. Counsel for the mother gave final submissions and the father made somelimited submissions. The father did not return to the court after a break in the afternoon. [14] The matter was adjourned for a written decision which was released on April 18, 2011. In that decision directions were givenfor a hearing on costs if either party was seeking costs.

The party seeking costs was to file their submissions on costs two weeks prior tothe hearing and the party responding was to file their submissions one week prior to the hearing. [15] The hearing on costs was scheduled for June 17, 2011 at the request of counsel for the mother. Counsel for the mother filedsubmissions on June 3, 2011. The father did not file submissions. [16] The hearing on costs was adjourned from June 17, 2011 to July 26, 2011 and again from July 26, 2011 to October 12, 2011 atthe request of the father with the consent of the mother.

The father did not appear on October 12, 2011 and the costs matter was furtheradjourned to October 31, 2011. The father was personally served with notice of the new date and wrote a letter to the court indicatingthat he would not be appearing on the costs matter. Analysis [17] Justice Gass recently reviewed the law on costs in Anderson v. Anderson, 2011 NSSC 90 at paragraph 6: [6] The issue of costs was addressed in the family law case of Bennett v.

Bennett (1981), 45 N.S.R., as referenced in Gardiner v.Gardiner, 2002 NSSF 47 (Tab "H"), wherein Justice Smith indicates at Page 6 that: The decision of Hallett J. (as he then was) in Bennett v. Bennett (1981), (NS SC), 45 N.S.R. (2d) 683 (N.S.S.C.) setsout the general principles surrounding the law of costs in matrimonial proceedings. At p. 685 the learned justice stated: Costs are a discretionary matter. It is normal practice that a successful party is entitled to costs and should not be deprived of thecosts except for a very good reason.

Reasons for depriving a party of costs are misconduct of the parties, miscarriage in the procedure,oppressive and vexatious conduct of the proceedings or where the questions involved are questions not previously decided by a court orarising out of the

interpretation of new or ambiguous statute (Orkin's Law of Costs). [Emphasis in original] Justice Legere-Sers further commented on the use of costs in Sheppard v. Sheppard, 2005 NSSC 137 (Tab "I"), wherein she stated atparagraph 56 that: Costs can be an effective instrument used to compensate a party in accordance with Rule 63 and prevailing case law when the conduct ofone party unreasonably escalates the costs of trial and ultimately the appropriate resolution of the issues needing to be resolved. More recently, Justice MacDonald in Fermin v. Yang, 2009 NSSC 222 (Tab "J") has provided a

summary of the principles of coststhat have emerged from the Rules and the case law. At paragraph 3 she lists these principles to be the following: 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 upon 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 my justify a decision not to award costs to a otherwise successful party or to reduce a cost award. 5.

The amount of a party and party costs 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". [Emphasis in original] [ 18 ] There is no doubt that the mother was the successful party and she is entitled to costs which would represent a substantial contribution to the expenses she incurred to commence and continue the proceeding. She should not be deprived of the costs except for a very good reason.

I cannot find a reason, let alone a very good reason, why the mother should be deprived of an award of costs. It was the father, not the mother, who displayed misconduct, misused the court ’ s time, increased costs and failed to disclose information. The mother is entitled to an award that would represent a substantial contribution towards her costs. [ 19 ] The starting point for an award of costs is the tariff of costs under the Costs and Fees Act.

Factors in the case law and in Rule 77:07 which would increase the award of costs in this case include the father ’ s failure to accept or even respond to the mother ’ s written offer to settle in November 2010 and the father ’ s repeated failures to disclose which increased the expense of the proceeding. There were at least three hearings dealing with the father ’ s failure to disclose. There were three court orders requiring disclosure and the father failed to fully comply with the orders. The mother had to subpoena witnesses and documents because the father failed to disclose.

The father did not comply with the filing directions of the court. [ 20 ] The father ’ s conduct and behaviour in the court, both in the pre-trial hearings and at the trial, was less than exemplary and certainly much less than should be expected of a police officer with more than twenty years ’ experience. The father chose not to behave properly although he knew the proper manner to conduct himself in a courtroom. [ 21 ] In some family law cases, particularly where the major issue is custody and access, it is difficult to use the tariff as it is difficult to determine the amount involved.

Because of this difficulty the amount of $20,000 per day of trial is used in some cases. However, in this case, custody was not the major issue. The major issues dealt with were property and financial matters. [ 22 ] The decision in this matter resulted in the mother receiving almost $600,000. Under Tariff A, the mother would be entitled to between $43,313 and $69,188 in costs. The mother ’ s actual legal fees, up to and including May 31, 2011, were $60,700.50, not including H.S.T. or disbursements. The mother is entitled to a substantial contribution to her expenses.

The costs award would be at the high end in this case because the conduct of the father substantially increased the mother ’ s costs. [ 23 ] The mother is awarded $60,000 in costs plus disbursements of $6,290.87.

Lynch, J.