KB Applicant v AT Respondent Judge: The Honourable Justice Theresa M Forgeron Submissions: June 1, 2023 v. June 20, 2023, 2023 NSSC 299

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: KB v AT , 2023 NSSC 299 Date: 2023-09-20 Docket: SFHPSA-124572 Registry: Halifax Between: KB Applicant v AT Respondent Judge: The Honourable Justice Theresa M Forgeron Submissions: June 1, 2023 and June 20, 2023 Decision: September 20, 2023 Counsel: Kristin Dobrosky, for the Applicant, KB Logan Clark-Kenney, for the Respondent, AT Costs Endorsement Introduction [ 1 ] Following a contested hearing about family violence and parenting, the parties filed their costs submissions.

For her part, KB, the mother, seeks costs of $12,500, plus disbursements of $1,289.30. In response, AT, the father seeks costs of $9,000. Issues [ 2 ] The following issues will be addressed in my costs decision: • What is the position of each party? • Who was the successful party? • What costs order will do justice as between the parties? Analysis [ 3 ] What is the position of each party?

Position of the Mother [ 4 ] The mother states that she was the successful party because the court granted most of her requests, including a finding that the father was violent; the adoption of a detailed parenting plan; and an order compelling counselling and continued supervision of the father’s parenting to mitigate and prevent further family violence. [ 5 ] The mother asks that costs be assessed according to tariff A, scale 2 based on an amount of less than $25,000 which equals $4,000, together with $2,000 applied for each day of the three-day contested hearing.

Additionally, she requests a 25% increase as permitted in Rule 77.07(2).

According to the mother, relevant factors associated with this increase include: • The mother’s settlement offers substantially aligned with my decision. • The father refused to meaningfully negotiate an out-of-court settlement. • The mother incurred increased legal fees because the father failed to negotiate in good faith, while also refusing to pay court- ordered child support, all of which diminished the mother’s ability to financially provide for the parties’ son. • The father refused to admit family violence which prevented an out-of-court settlement, resulting in the mother incurring legal fees and also paying a private company to supervise the father’s interim parenting time.

• The father refused to attend New Start Counselling until closing submissions. An earlier consent would have reduced the time required for the hearing and ultimately, the mother’s legal fees. [ 6 ] The mother also urges the court to dismiss the father’s claim for impecuniosity because he did not file a motion to waive costs at the outset of the proceeding. Despite being aware of the costs implications of litigation, the father remained steadfast in his position and refused all reasonable compromises. Further, although the mother’s family may have financial resources, the mother does not.

It is the mother, not her family, who is responsible for the financial stability and safety of the parties’ child. Position of the Father [ 7 ] The father said that although there was mixed success, he was ultimately the more successful party because he obtained: • More parenting time than was ever offered while the mother was represented by her current counsel. • An end to third party supervision. The court agreed that the paternal aunt was an appropriate supervisor.

Supervision will thus be more comfortable and less intrusive than when conducted by employees of a private company. • An end to the restriction on the location of his parenting time. The court no longer required the father to exercise parenting time solely at his home. The father is free to determine where his parenting time will be spent. • A final order that provides certainty. The father now knows what is required of him to terminate supervision.

He knows that he must participate and successfully complete counselling with detailed, specified objectives. [ 8 ] The father also asks that costs be assessed under tariff A, scale 1 according to the principles outlined in Rule 77 and in L (ND) v L (MS) , 2010 NSSC 159 and Gagnon v Gagnon , 2012 NSSC 137 . [ 9 ] In determining the costs award, the father asks that I consider the history of the case.

Contrary to what was suggested, the father states that he did meaningfully participate in settlement conferences, and agreed on some issues, including third party supervision up until trial, even after the mother withdrew her consent to an April 8, 2022 interim order issued by the settlement conference judge, which provided the father with unsupervised parenting time every Saturday from 9:30 am until 3:30 pm.

The father states that the mother’s withdrawal from the settlement process undermined the father’s faith in the pre-trial resolution process such that he believed no final order could be negotiated on the parenting issues, regardless of any admission of family violence. The father said that the mother’s withdrawal from the settlement conference process gutted the efficacy of the pre-trial resolution process so vital to resolving contentious family law disputes. [ 10 ] Finally, the father states that he has a limited ability to pay a costs award.

He notes that he was in a car accident over the winter which impacts his ability to earn. The father emphasized that during the trial, the maternal grandmother testified that she provides the mother with substantial financial assistance. Thus, the mother is in a better financial position than he is. [ 11 ] Who was the successful party? [ 12 ] Although the father was successful on some of the litigated issues, the mother was nonetheless the more successful party.

The most hotly contested issue, and the one which framed all other parenting issues, and the one which consumed most of the trial time, was whether the father engaged in family violence. The father denied all abuse. I, however, found that the father was physically and emotionally abusive. Thus, the mother was completely successful on the most dominant and pressing trial issue. [ 13 ] In addition, the mother succeeded in obtaining sole decision-making because of the father’s abusive conduct.

I dismissed the father’s request for joint decision-making. [ 14 ] Further, the mother was also successful in her quest to continue supervision pending the father’s completion of intimate partner violence counselling. Before the trial began, the mother consented to the paternal aunt being designated as a potential parenting supervisor. The father succeeded in having the private company removed as a supervisor and in having location restrictions removed. He also received more parenting time than the mother suggested. [ 15 ] Finally, the mother also succeeded on the counselling issue.

The father only agreed to participate in counselling during final submissions, after the evidence was closed, likely because the father denied that family violence was an issue. In my decision, I found that counselling was necessary to ensure that the father gained insight into what constitutes family violence; how his conduct towards the mother was abusive; what constitutes healthy relationships; and how children are negatively impacted by violence. Counselling was also ordered to ensure that the father gained skills to manage anger and anxieties, including the identification of triggers.

The mother was successful on this issue. [ 16 ] Costs are thus payable to the mother. [ 17 ] What costs order will do justice as between the parties? [ 18 ] Costs are generally payable to the successful party. In Armoyan v Armoyan , supra , Fichaud, JA reviewed relevant costs principles: • The court's overall mandate is to "do justice between the parties": para 10. • Unless otherwise ordered, party and party costs are quantified according to the tariffs. The court has discretion to raise or lower the tariffs, applying factors like those listed in Rule 77.07(2).

These factors include unaccepted written settlement offers, and the conduct of the parties insofar as it affects the speed or expense of the proceeding: paras 12 and 13. • The basic principle is that costs “should afford a substantial contribution to the party's reasonable fees and expenses.” A substantial

contribution not amounting to a complete indemnity means more than 50% and less than 100% of a lawyer's reasonable bill for services: para 16. [ 19 ] In this case, pursuant to Rule 77.18 (d), I adopt the approach advocated by both parties in the quantification of the amount involved, which they agree is an amount of less than $25,000 for the purposes of employing tariff A. [ 20 ] I must now decide between scale 1, as the father suggests, and scale 2, as the mother suggests.

I find that scale 2, the basic scale, is the more appropriate scale, applying the rationale stated in Chipman v Chipman , 2017 NSSC 293 at para 51 . In assigning scale 2, I note that the trial took three days to complete; eight witnesses testified; and the matter was important because it involved parenting issues associated with a young child and significant issues surrounding intimate partner violence. Although not overly complicated, the trial was not a simple one. Scale 2, the basic scale, is thus appropriate.

An award of $10,000 results from adding the basic scale amount of $4,000 to the product produced by multiplying $2,000 for each of the three trial days. [ 21 ] The mother next asked me to increase the $10,000 by 25% pursuant to Rule 77.02 for reasons previously noted. I dismiss her request. This is not an appropriate case in which to do so for the following reasons: • The mother’s settlement offer did not mirror my decision. • The father succeeded on some issues. • The father did meaningfully participate in the settlement conferencing process. He did not withdraw from that process.

Because the parties did not reach agreement during the settlement conference process, a trial was held. Neither party is responsible for the failed settlement negotiations. • Costs are meant to provide a substantial contribution to the successful party’s legal fees. Costs are not meant to redress maintenance enforcement difficulties. • The father has a compromised ability to pay. The father, however, is not shielded from a costs award in the absence of a timely Rule 77.04 motion and order.

In addition, I have no evidence of his current financial and medical circumstances. [ 22 ] A costs award of $10,000, plus disbursements of $1,289.30 will do justice as between the parties. Conclusion [ 23 ] In the circumstances of this case, to do justice as between the parties, the father must pay $11,289.30 in costs to the mother, payable at a rate of $300 per month, until the costs award is paid in full. The mother’s counsel will draft the order. Forgeron, J