Tremblett v. Beatty, 2014 NSSC 316

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Tremblett v. Beatty, 2014 NSSC 316 Date: 2014-08-25 Docket: SNMCA No. 089509 Registry: Sydney Between: Judy Tremblett Applicant v. Craig Beatty and Angela Hiltz Defendant Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: June 3, 2014, in Sydney, Nova Scotia Counsel: Alisha Brown-Fagan for Judy Tremblett Lloyd Berliner for Craig Beatty Angela Hiltz, Self Represented By the Court: [ 1 ] This is a decision on costs following the filing of a Notice of Discontinuance on June 23, 2014 by Ms.

Tremblett in relation to her Application for custody and maintenance filed January 16, 2014 (as amended on January 22, 2014 to include leave to apply). [ 2 ] Ms. Tremblett filed her Application after the teenage son of the Respondents moved in to live with her. The Respondent’s son is 19 (nineteen) years of age. The reason for his opting to move in with Ms.

Tremblett’s family was an issue that has not been determined, given the Notice of Discontinuance. [ 3 ] The parties appeared before the court for a pretrial conference on June 3, 2014 at which time it was agreed the matter would proceed first with the determination of a question of law, namely whether an adult child living with a guardian fits the definition of a dependent child under the Maintenance and Custody Act. If so, a hearing date would then be set to deal with Ms. Tremblett’s Application. [ 4 ] A deadline for submissions on the preliminary issue was set for June 27, 2014.

The Notice of Discontinuance was filed on June 23, 2014. Written submissions on the preliminary issue were not received from either counsel before the Notice of Discontinuance was filed. [ 5 ] On receipt of the Notice of Discontinuance, counsel for Mr. Beatty requested an opportunity to address the issue of costs. Although no motion was filed seeking costs, the Court advised that it would accept submissions. Counsel for Mr. Beatty and Ms. Tremblett made written submissions. Ms. Tremblett did not seek relief from liability for costs under Civil Procedure Rule 77.04.

[ 6 ] Both counsel in their submissions addressed the background to Ms. Tremblett’s Application. Both referenced facts not before the Court. Mr. Beatty’s counsel states in his submissions that Rule 9.06 (1) does not apply to proceedings in the Supreme Court Family Division, but does not cite Civil Rule 59.16 (5). He asks that costs be awarded nonetheless in accordance with Rule 77. [ 7 ] Civil Procedure Rule 59.16(2) and (5) states: 59.16

(2) A party may discontinue an application or petition, or withdraw a response or answer, as provided in Rule 9 - Discontinuance, unless this Rule 59.16 provides differently or a judge orders otherwise. …

(5) A party affected by a discontinuance may make a motion for costs in an amount to be fixed under Rule 77 - Costs, and Rule 9.06(1), which provides for automatic costs, does not apply under this Rule 59, unless a judge orders otherwise. [ 8 ] I am not prepared to order that Civil Procedure Rule 9.06 (1) applies, such that costs would be awarded against Ms. Tremblett automatically. I will therefore address the issue of costs under Rule 77. [ 9 ] Civil Procedure Rule 77 provides for the assessment of costs in all proceedings and grants the Court discretion in making such awards. Civil Procedure Rule 77.02 (1) and (2) states: 77.02

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement. [ 10 ] Under Rule 77 Tariff C deals with costs on an Application heard in Chambers while Tariff F sets the amount of costs to be awarded in proceedings that are discontinued. [ 11 ] In the case before me there was no hearing, so Tariff C does not apply. I am unable to assess the “amount involved” under Tariff F as there is no evidence of the amount of money at stake should Ms.

Tremblett have pursued her Application and been successful. [ 12 ] Rule 77.08 allows the Court to award lump sum costs in lieu of Tariff costs. Mr. Beatty points to several factors which he says support his claim to costs: 1. His counsel prepared submissions on the question of law to be determined, although no brief was filed. 2. His counsel responded to Associate Chief Justice O’Neil’s memorandum of April 25, 2014. 3. His counsel travelled from Truro to appear at a pretrial conference in Sydney on June 3, 2014. 4.

His counsel canvassed the issue of whether the son was a dependent child under the legislation several times before the pretrial of June 3, 2014 with Ms. Tremblett’s counsel. [ 13 ] Ms. Tremblett says that her Notice of Discontinuance is not an acknowledgement that her Application was unfounded. She says she discovered that the Respondents would be opposing the Application despite her earlier understanding they would not, and because she did not want to expose her family and the Respondents’ son to a full hearing, she opted to discontinue her Application. [ 14 ] I note in the e-mails attached to Ms.

Tremblett’s submissions, that she was told by Mr. Beatty he was seeking advice on the issue. After he failed to respond to her repeated requests for support, she issued him an ultimatum - in effect that if support wasn’t paid, she would file an Application. It is difficult to understand her surprise when the Application was contested in the circumstances. [ 15 ] In any event, in filing her Notice of Discontinuance, Ms.

Tremblett has saved the Parties the time and expense of a hearing, as well as freed up valuable court time. [ 16 ] In all of the circumstances of this case, I decline to make an award of costs against Ms. Tremblett for the following reasons:

• She did not act unreasonably in filing her Application, as the child was living with her and there was no support being paid; support is the right of the child; • She filed her Notice of Discontinuance before briefs were filed on the question of law; • While ultimately a hearing on the support issue might not have been required (depending on the outcome of the determination of the question of law), she has potentially freed up valuable court time in filing the Notice of Discontinuance; • The preliminary issue to be determined by the court is a novel one; • There is no evidence of costs incurred by Mr.

Beatty in preparing submissions on the preliminary issue; • The fact that Mr. Beatty’s counsel had to travel several hours to attend the pretrial conference relates to Mr. Beatty’s choice of counsel, and is not something within Ms. Tremblett’s control; • There was no request to attend the pretrial conference by phone. [ 17 ] For the above reasons, I direct that each party shall be responsible for their own costs of this proceeding. ​​​​​​​​​__________________________ J. Lee Anne MacLeod-Archer