M. R. v. M. R., 2016 NSSC 324

SUPREME COURT OF Nova ScotiaFAMILY DIVISION Citation: M. R. v. M. R., 2016 NSSC 324 Date: 2016-11-25Docket: SFHS No. 1201-068850/97005Registry: HalifaxBetween:M. R.Applicantv.M. R.Respondent Judge: The Honourable Justice Darryl Wilson Written Decision: November 25, 2016 Counsel: Patrick Eagan – Counsel for PetitionerJanice Beaton, QC – Counsel for Respondent By the Court:[1] The Respondent requests an order for costs of an interim motion. [2] The Petitioner filed a Petition for Divorce on July 24, 2015.

The Petitioner subsequently filed an interim motion for joint and shared custody, week about (or other equal sharing), and child support on February22, 2016. The hearing took place on May 17, 2016, followed by written submissions on May 31, 2016. The court’s decision was rendered on June 23, 2016, and the interim order was issued on August 25, 2016.[3] The court ordered that the parties were to have joint custody of the children. The Respondent would be the children’s primary care provider in the interim.

In the event of a disagreement respecting a majordecision involving the children, the Respondent had final decision making authority. The parenting time arrangement that existed prior to the hearing was continued with the exception of the Summer for which alternatingweeks were ordered. The Petitioner was ordered to pay the Table amount of child support, as well as a proportionate share of some

section 7 expenses claimed by the Respondent, but not all

section 7 expenses claimed bythe Respondent. [4] The Respondent requested a costs order of $7,273.75, consisting of legal fees, plus disbursements and HST. [5] The Petitioner’s submission was that costs should be in the cause of this matter. In the event the court concludes that some costs should be awarded, counsel for the Petitioner submits there are no specialcircumstances or issues that require a court to deviate from Tariff “C”, which attracts a cost range of $750 to $1,000 for a hearing of a half-day.Legal Principles[6] Both counsel referred the court to the decision of Justice Beryl MacDonald in Hayden v.

Stone, 2014 NSSC 386, at paragraphs 9 through 12:[9] The costs of interim motions and occasionally interlocutory proceedings were often left as costs in the cause. However there appears to be a movement away from this practice. [10] In Smith v.

Haley, 2006 NSSC 182 Justice Hood commented:[14] The defendant has been successful in this application and the court is encouraged to make an award of costs at the time of the chambers application rather than leaving it for the trial judge who, in all likelihood, willnot have been the chambers judge and some substantial period of time may pass before this matter gets to trial, if it goes to trial. It is difficult for the trial judge to go back and determine what should have been awarded ona chambers application held some time ago.

The practice of the court is that we are encouraged to award the costs at the time of the chambers application. I award costs in the amount of $750.00 in any event of the cause. [11] In National Bank Financial Ltd. v.

Potter, 2008 NSSC 213 , Justice Warner said:13 While at one time it may have been usual to defer costs of interlocutory applications to the end of the case, the length and complexity of modern litigation has led to a reversal of that trend except in thosecircumstances where the primary issue in the interim application is the same as that intended in the ultimate hearing, or where to award costs at an interim stage may prevent the matter from being determined on its meritsat a later date.

Generally the parties are better able to argue and the Court is better able to make the appropriate costs determination at the time of the application. Unless the costs award may be improved with the benefitof hindsight (after trial), the award should be paid when ordered…. [12] Several principles emerge from an analysis of the Civil Procedure Rules and the case law about cost awards that apply as equally as well to cost requests following motions as they do to cost requests followingtrials - (Civil Procedure Rule 77, 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;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, impecuniosity of the parties, misconduct, oppressive and vexatious conduct, misuse of the court’s time, unnecessarily increasing costs to a party, and failure to discloseinformation may justify a decision not to award costs or reduce a cost award to an otherwise successful party.5. Offers exchanged prior to a hearing may affect the quantum of a cost award. 6. The amount of a party and party cost award should “represent a substantial contribution towards the reasonable expenses of presenting or defending the proceeding, but should not amount to a completeindemnity”.7.

The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award.

8. 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.Respondent’s Position[7] Counsel for the Respondent requests the court to consider the following factors in determining whether to order costs and the amount of costs:1. The Respondent was substantially successful because the status quo was maintained. While the court ordered joint custody, the Respondent had final decision making authority. The court also ordered childsupport, including the table amount and an amount for

section 7 expenses. The Petitioner had not paid child support until making a lump sum payment one week before the hearing.2. The Respondent made an offer to settle on May 11, 2016, which was more favorable than the court ordered. The Respondent’s offer to settle included one additional overnight every two weeks, which thecourt did not order. The Respondent ‘s offer to settle the

section 7 claim did not seek a contribution to a psycho-educational assessment (a one-time expense), which the court ordered. 3. The Petitioner’s conduct of the proceeding unnecessarily increased the Respondent’s costs. The Respondent acknowledged she filed attachments to her affidavit on May 10, 2016, which was one day later thenthe due date. However, she was required to file a lengthy affidavit (168 paragraphs) to respond to the Respondent’s affidavit (75 paragraphs), which dealt with many issues during the 2 year interim period from separationto hearing. 4.

The Petitioner’s rebuttal affidavit was due May 12, 2016, but not filed until May 16, 2016, which was one day before the hearing and it contained 230 paragraphs and 260 pages of exhibits. Further, counselfor the Petitioner was not prepared for final submissions at the end of the hearing, and requested time to file written submissions, which added to the Respondent’s costs. [8] Counsel for the Respondent submits:1. Costs of a proceeding follow the result unless a judge orders or a Rule provides otherwise; Civil Procedure Rule 77.03(3). 2.

There must be a very good reason to deprive a successful party of costs; Hanakowski v. Hanakowski, par 3.3. A cost award should represent “represent a substantial contribution” towards a party’s reasonable expenses, presenting or defending the proceeding; Armoyan v. Armoyan, 2013 NSCA 136. 4. The Petitioner’s failure to accept a more favorable settlement offer in advance of the hearing, means that the Respondent should receive a substantial contribution to her actual legal fees incurred to respond tothe motion.

Petitioner’s Position[9] Counsel for the Petitioner submits the costs of an interim motion should be in the cause. He requests the court to consider the following factors:1. The primary issue on the interim motion will be the same as the main issue on the final hearing. Therefore, the exception to the trend towards a “movement away” from the practice of costs of interim motionsbeing in the cause applies since the primary issue in the interim motion is the same as that intended for the final hearing. 2. There was mixed success.

While the Respondent was successful on the main issue, there were other issues where she was not successful. The court’s decision was not determinative of any substantive issuesof the proceeding.3. Affidavit evidence for the interim motion will be used for a determination of the final hearing. Costs are rarely ordered on an interim motion involving parenting issues where there is no agreement in place.4. The cost award will reduce the Petitioner’s ability to proceed.5.

The Respondent’s legal account is unreasonable given that the Petitioner’s legal account is only $3,500 and that the hearing was uncomplicated motion. The late filing of the rebuttal affidavit did not impacton costs and provided the Respondent notice of the Petitioner’s evidence for final hearing.6. The Respondent’s proposal of alternating weeks in the Summer and one extra night every two weeks was not offered at the hearing and was not substantially different than what the court ordered. TheRespondent did not propose joint custody, which the court ordered and she asked for too much in

section 7 expenses, which was not ordered by the court.Conclusion[10] I find the Respondent was a successful party and as such is entitled to costs. The issues for determination were not complicated. Only the parties testified. References by the parties in their affidavits to opinionsof professionals dealing with the children were not considered by the court and no experts testified. [11] The Petitioner initiated the proceeding and sought in an interim hearing a major change to the parenting time which had existed for approximately 2 years prior to the hearing.

The Respondent’s offer to settleclosely resembled the court’s decision. There was no indication of an offer to settle by the Petitioner. [12] Persons involved in litigation should be aware there are cost consequences if they are not successful. [13] Since I am not likely to be the trial judge, I am in a better position to assess the costs of this motion. [14] The court has a general discretion to make an order for costs and any order that it does make should satisfy the judge that it will do justice between the parties.

Rule 77.02. [15] Case law has suggests recovery of costs should present a substantial contribution towards the party’s reasonable expenses in defending the proceeding. However, the recovery costs are not meant to be a completeindemnification.[16] Tariff “C” provides for a substantial and reasonable contribution to a party and party costs in a chambers application. I have compared the Tariff “C” rate for a half day hearing in chambers with the Tariff “A”rates for a one day trial.

I have used the “rule of thumb” for determining the amount involved in matrimonial cases many courts are using by equating one day of trial to an amount of $20,000. The Respondent’s claim forcosts of $7,273.75 is slightly more than what Tariff “A” provides for a complicated one day trial involving an amount less than $25,000.[17] The range of costs for a half day chambers’ application is $750 to $1,000.[18] Judges ordering costs in accordance with the Tariff may add an amount to or subtract an amount from the Tariff.

Factors which may be relevant in determining whether to add an amount to the Tariff after thehearing of an application, including written offers of settlement and conduct of a party affecting the speed or expense of a proceeding. There was an offer of settlement by the Respondent which closely resembled thecourt’s decision. The Respondent’s counsel’s request to file written submissions added somewhat to the expense of the proceeding.[19] The court orders the Petitioner to pay the Respondent costs of $2,000 payable at the final determination of the divorce proceeding. ______________________________Wilson, J.