C.B. v. D.M., 2017 NSFC 23

FAMILY COURT OF NOVA SCOTIA Citation: C.B. v. D.M. , 2017 NSFC 23 Date: 2017-10-02 Docket: Pictou No. FPICMCA71627 Registry: Pictou Between: C.B. Applicant v. D.M. Respondent Editorial Note: Identifying Information has been removed from this electronic version of the judgment. Judge: The Honourable Judge Timothy G.

Daley Heard June 1 and 2, 2017 in Pictou, Nova Scotia Final Written Submissions: August 14 and 25, 2017 Counsel: Mallory Arnott, for the Applicant Judith Schoen, for the Respondent INTRODUCTION [ 1 ] This is a decision on costs following a hearing to determine whether it was in the best interests of the child, C.M., that she be permitted to relocate with her mother, C.B., to Toronto or remain in the care of her father, D.M., in Nova Scotia. [ 2 ] Both parents sought an order of joint custody for the child. [ 3 ] D.M. argued that it was in the child's best interest that she remain in Nova Scotia with him throughout the year and that she have parenting time with her mother in the summer, at Christmas, during school spring break and at other times her mother was available to come to Nova Scotia.

He also sought child support for the child. [ 4 ] C.B. has been living in Toronto since 2012 and, pursuant to an order of the Supreme Court Family Division issued in 2012, she has spent time each year in Nova Scotia and in Toronto with the child. It was her position that it would be in the child's best interest that the child primarily reside with her in Toronto and have parenting time with her father in the summer, at Christmas, during school spring break and at other times that the father is available to come to Toronto.

She did not seek child support but instead proposed that the father use these funds for travel costs for him or the child or both. [ 5 ] The hearing of the matter was scheduled for two days but the evidence only took one and one half day to complete. Counsel were instructed to provide closing submissions in writing in order that the court could properly consider the new provisions of the Parenting and Support Act , which had come into effect shortly before the hearing.

In addition, the parties participated in a judicial settlement conference for a total of one half day, which was unsuccessful. [ 6 ] This Court provided a written decision in the matter granting the application of the mother to vary the current order. Joint custody was granted.

The mother was permitted to relocate the child to live with her in Toronto and the father was granted substantial parenting time during the summer school break, school spring break, school study break, Christmas, weekends once each month as well as reasonable parenting time when he could travel to Ontario and when the mother and child travelled to Nova Scotia.

Child support was not ordered taking into account the high cost of the father exercising parenting time with the child and the incomes and other circumstances of the parties.C.B. says that she should be awarded party-party costs in accordance with tariff A pursuant to Ci vil Procedure Rule 77 and calculates costs for two days of hearing plus one half day of judicial settlement conference at $11,250.

[ 7 ] C.B. says she should be awarded costs because she was entirely successful in her application, the relocation of the child was granted and her position on child support was adopted by the court. She says that there is nothing exceptional about this case and no good reason not to order costs in the matter. She further says there is no evidence of oppressive or vexatious conduct on behalf of either party in this circumstance.

She says that the father works full time and has sufficient income to pay costs and asked that they be awarded in a lump sum payable within 30 days. [ 8 ] D.M. says that the court should consider that decisions regarding relocation are, by their very nature, extremely difficult to predict and that neither party took an unreasonable position in this matter.

He notes the substantial legal fees incurred in past litigation and that though he was successful in the prior matters, both in the Supreme Court (Family Division) and Court of Appeal, he did not seek costs from C.B. who did not incur any legal fees as she was represented through Nova Scotia Legal Aid. [ 9 ] D.M. agrees that the parties participated in a judicial settlement conference prior to the hearing which was unsuccessful but maintains this was done in good faith and litigation became necessary to resolve the outstanding issues. [ 10 ] Finally, he notes that the parties did cooperate during the process, neither party complicated any issues before the court and the matter proceeded as expeditiously as possible.

Law on Costs [ 11 ] The Family Court’s authority to award costs is rooted in

section 13 of the Family Court Act 1989 RSNS c.159 as amended which reads: The Family Court is hereby granted the authority to award costs in any matter or proceeding in which it has jurisdiction and its authority to award costs is not limited by reason of the fact that the enactment governing the proceeding does not grant to the Court authority to award costs. [ 12 ] The Family Court Rules, N.S. Reg 20/93 and specifically rule 21.01 sets out further authority as follows: The amount of costs is awarded at the discretion of the judge.

Costs may be collected in accordance with the procedure provided for collection of support or in any other manner that the court directs. Costs, at the discretion of the court, may be payable to the court, the party, the party’s counsel or any other person that the court directs. Costs, at the discretion of the judge, may be payable to the court, the party, the party’s counsel or any other person that the judge directs. [ 13 ] This authority was summarized by Levy, J.F.C. in D.M.T.C. v. L.K.S. 2007 NSFC 35 at paragraph 3 (where he was referring to the prior provisions of the rules) as follows: 3.

The Family Court Act,

section 13, grants authority to the court to award costs “...in any matter or proceeding in which it has jurisdiction...”. … While Family Court Rule 1.04 provides that recourse can be had to both the

Interpretation Act and the Civil Procedure Rules, at the discretion of the court, this recourse is limited to situations where “no provision” is made in the Family Court Rules for the point in issue. In this case the discretion to grant or refuse costs and to determine the amount of any costs is fully, if succinctly, covered in Rule 17.01 (1) (now Rule 21.01) and therefore Family Court Rule 1.04 does not apply in these respects.

That said, a court’s discretion is to be exercised judicially and the best way to do so is to take one’s guidance from Civil Procedure Rule 63 and related case law. [ 14 ] The relevant current Civil Procedure Rule is Rule 77 which states in part: Scope of Rule 77 77.01

(1) The court deals with each of the following kinds of costs: party and party costs, by which one party compensates another party for part of the compensated party’s expenses of litigation;

solicitor and client costs, which may be awarded in exceptional circumstances to compensate a party fully for the expenses of litigation; fees and disbursements counsel charges to a client for representing the client in a proceeding. … General discretion (party and party costs) 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. … Assessment of costs under tariff at end of proceeding 77.06

(1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act , a copy of which is reproduced at the end of this Rule 77.

(2) Party and party costs of an application in court must, unless the judge who hears the application orders otherwise, be assessed by the judge in accordance with Tariff A as if the hearing were a trial.

(3) Party and party costs of a motion or application in chambers, a proceeding for judicial review, or an appeal to the Supreme Court of Nova Scotia must, unless the presiding judge orders otherwise, be assessed in accordance with Tariff C. … In these tariffs unless otherwise prescribed, the “amount involved” shall be … (

c) where there is a substantial non-monetary issue involved and whether or not the proceeding is contested, an amount determined having regard to the complexity of the proceeding, and the importance of the issues; [ 15 ] In Gomez v. Ahrens 2015 NSSC 3 , MacDonald J. of the family division, summarized some of the applicable case law at paragraphs 16 and 17: [16] At one time it was generally considered inappropriate to grant costs in cases involving custody of or access to children. That no longer is accepted as a general rule.

Costs have long been considered as a deterrent to those who would bring unmeritorious cases before the Court. Many parents want to have primary care or at the very least shared parenting of his or her children but that desire must be tempered by a realistic evaluation about whether his or her plan is in the best interest of the children. The potential for an unfavorable cost award has been suggested as a means by which those realities can be bought to bear upon the parent’s circumstances. Nevertheless there will always be cases where a judge will exercise his or her discretion not to award costs.

[17] Some of the more common principles that guide decision making in cost applications are found in 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.). My

summary of the principles relevant tothis case are that: Costs are in the discretion of the court. A successful party is generally entitled to a cost award. A decision not to award costs must be for a “very good reason” and be based on principle. Deference to the best interests of a child, misconduct, oppressive and vexatious conduct, misuse of the court’s time, unnecessarilyincreasing costs to a party, and failure to disclose information may justify a decision not to award costs to an otherwise successful partyor to reduce a cost award.

The amount of a party and party cost award should “represent a substantial contribution towards the parties’ reasonable expenses inpresenting or defending the proceeding, but should not amount to a complete indemnity”. 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 NSFC27: Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves (because ofpublic or third-party funding) but at a large expense to others who must “pay their own way”.

In such cases, fairness may dictate that thesuccessful party’s recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65]. 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 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 the Trial. If the Trial did not involve a money amount other factors apply.

Thenature of matrimonial proceedings may complicate or preclude the determination of the “amount involved”. 9. When determining the “amount involved” proves difficult or impossible the Court may use a “rule of thumb” by equating each dayof trial to an amount of $20,000.00 in order to determine the “amount involved”. 10. If the award determined by the tariff does not represent a substantial contribution towards the parties’ reasonable expenses “it ispreferable not to increase artificially the “amount involved”, but rather, to award a lump sum”. However, departure from the tariff shouldbe infrequent. 11.

In determining what are “reasonable expenses”, the fees billed to a successful party may be considered but this is only one factoramong many to be reviewed. 12. When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and alsoexamine the reasonableness of the offer compared to the parties’ position at trial and the ultimate decision of the Court.

[ 16 ] In the decision of Moore v. Moore , 2013 NSSC 281 Jollimore J. provided helpful comments on the consideration of the complexity of the proceeding and the importance of the issues when she wrote: [16] The proceeding was not complex. Determining where a child spends her time, where she attends school, where she spends her holidays and her parents’ attendance at her extra-curricular activities are common and uncomplicated applications. So, too, are motions for a child’s wish report or a custody and access assessment.

The requests for a review order and for the appointment of a child advocate are less common, but virtually no time was spent on these requests and they were addressed barely, if at all, by Mr. Moore’s evidence and submissions. [17] It is difficult to say that any parenting application is not important. There are, however, degrees of importance. For example, an application to terminate a child’s access to a parent is of utmost importance. An application to relocate a child’s primary residence to a distant country where access would be restricted is of considerable, but lesser importance. Here, Ms.

Moore’s requests for relief are not of utmost importance in the range of parenting decisions we are asked to make, but they are clearly important. [ 17 ] It is also important to note that, though proceedings in Family Court are generally considered applications, I adopt the reasoning of Jollimore, J. in Moore supra at paragraph 14 when she addressed the applicability of Tariffs A to applications in the Family Division: [14] Initial guidance in determining costs is the tariff of costs and fees. The proceeding before me was a variation application. Formally, Tariff C applies to applications. As I said in MacLean v.

Boylan, 2011 NSSC 406 at paragraph 30 , applications in the Family Division are, in practice, trials. Rule 77’s Tariffs have not changed from the Tariffs of Rule 63 of the Nova Scotia Civil Procedure Rules (1972). Despite the distinction between an action and application created in our current Rules, the Tariffs have not been revised. My view has not changed since I decided MacLean v.

Boylan , 2011 NSSC 406: I don’t intend to give effect to the current Rules and their incorporation of the pre-existing Tariffs where this routinely results in lesser awards of costs for the majority of proceedings in the Family Division, such as corollary relief applications, variation applications and applications under the Maintenance and Custody Act or the Matrimonial Property Act.

In these situations, I intend to apply Tariff A as has been done by others in the Family Division: Justice Gass’ decision in Hopkie, 2010 NSSC 345 and Justice MacDonald in Kozma, 2013 NSSC 20 . [ 18 ] Fichaud, J. on behalf of our Court of Appeal in Armoyan v. Armoyan , 2013 NSCA 136 also noted and adopted the following: [20] Justices of the Family Division have stated that trial-like hearings in matrimonial matters are more appropriate for Tariff A than Tariff C: Hopkie v. Hopkie , 2010 NSSC 345 , para 7 , per Gass, J.; MacLean v. Boylan , 2011 NSSC 406 , paras 29-30 , per Jollimore, J.; Kozma v.

Kozma , 2013 NSSC 20 , para 2 , per MacDonald, J.; Robinson v. Robinson, 2009 NSSC 409 , para 10 , per Campbell, J. [ 19 ] I find that there is no difference in proceedings in the Supreme Court Family Division and the Family Court. Analysis [ 20 ] As with all decisions regarding costs, the necessary first step in the analysis is to determine whether there has been a successful party and, if so, which party that is. Determining success in any civil litigation matter is often a nuanced exercise.

In family law cases, parties often contest various issues including custody, parenting time, child support and spousal support. Within each of those issues the parties will take various positions. For example, in a custody dispute one party may seek sole custody with supervised parenting time. That party may be successful on the sole custody claim but unsuccessful on the supervised parenting time claim.

Thus, overall success or failure of a party for purposes of determining costs usually, and necessarily, involves an analysis of all the issues in play at the hearing and the relative level of success or failure of each party, both on individual issues and in the overall context of the matters before the court. [ 21 ] In this matter, the mother was successful on the central issue of mobility and the related issue of primary residence and parenting time.

Though it is true that the father took a reasoned position in opposing the relocation, he was simply not successful in that position. [ 22 ] As to custody, the parties agreed that joint custody was appropriate and this was ordered. This issue was neutral as to outcome.

[ 23 ] Regarding child support, the mother sought none considering the cost of travel for the father to have parenting time. The father sought child support. The mother was successful in her position. [ 24 ] Having determined that the mother was the successful party on all issues, I further find that there is nothing in the behaviour of the mother that would suggest the costs should be denied or reduced.

She was timely in filing obligations throughout the process and there is no evidence before me to suggest that she unnecessarily increased cost to either party. [ 25 ] I further find that the father did not unnecessarily delay the matter or otherwise act in a vexatious or oppressive manner and he did not waste court time.

There was nothing in his or his counsel’s conduct of his case that gives rise to any concerns by the court. [ 26 ] In this circumstance, I find it appropriate and necessary to award costs to the mother, payable by the father, based on her success on the issues before the court and I can find no "very good reason" to not award such costs based on any principal. [ 27 ] The mother seeks party and party costs. I find it necessary to refer to the tariff of costs and fees contained within the Civil Procedure Rules and in doing so I must determine the "amount involved".

I find that determining the amount involved is difficult in this case given the nature of the issues at play, including mobility, custody and parenting time. As well, the financial components of the claims, specifically child support, is something that is paid out, or in this case waived, over time and is impossible to fully quantify as a result. [ 28 ] I therefore find it reasonable and necessary to apply the "rule of thumb" identified by MacDonald J. in Gomez supra of $20,000 for each day of trial. [ 29 ] The determination of days of trial is discretionary as well.

The final hearing took one and one half days and final written submissions followed. The parties took

part in a judicial settlement conference prior to the hearing which was unsuccessful in resolving issues. Considering these factors, I find that the total time involved to deal with the matter was two full days and applying the rule of thumb amount of $20,000 per day, the total amount involved I find to be $40,000. [ 30 ] I further find that this matter was not particularly complex. The issue of relocation is one this court deals with frequently and the evidence was clear, well-argued and there were no issues which were novel or difficult to address.

That said, certainly the issue at stake, relocation of the child from Nova Scotia, was very important to the parties and child. I find that scale 2 of tariff A is the appropriate scale in this circumstance. I do not find that the prior costs decisions in the previous proceedings are relevant to this decision. [ 31 ] Applying scale 2 of tariff A from the Civil Procedure Rules to the amount involved of $40,000, I determine the basic scale cost of $6,250. To this must be added $2,000 per day of trial for a total of $9,250. [ 32 ] I do consider two further factors.

First, the father notes that applications for relocation are difficult to predict. While I do not agree that all such matters are unpredictable, I do find that in this case, both parents offered good plans for the child, had a realistic expectation of success and neither was unreasonable in their approach to the matter. [ 33 ] Second, while the father is employed, he has a modest income from which to pay costs. The mother does not have a high income herself from which to bear her own legal costs.

Thus, this factor does not influence my award. [ 34 ] Considering all of this, I award costs payable by the father to the mother in the amount of $7,000. These costs are payable within 30 days unless otherwise agreed between the parties. [ 35 ] Counsel for the mother will draw the costs order. Daley, JFC