Bethune v Bethune, 2016 NSCA 66

Nova Scotia Court of Appeal Citation: Bethune v Bethune , 2016 NSCA 66 Date: 20160913 Docket: CA 446774 Registry: Halifax Between: Kathleen Marie Bethune Appellant v. Drew Cameron Gordon Bethune Respondent Judges: Bourgeois, Saunders and Van den Eynden, JJ.A. Appeal Heard: September 7, 2016, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons by the Court Counsel: Christine Doucet, for the appellant William L.

Ryan, Q.C., for the respondent By the Court (Orally per Saunders, J.A.): [ 1 ] This is an application for leave to appeal and appeal the costs decision of Nova Scotia Supreme Court Justice Carole A. Beaton following a three-day divorce proceeding over which she presided in Halifax. [ 2 ] The trial decision is now reported 2015 NSSC 95 . The parties were unable to agree on costs which required a second hearing before Beaton J. with further written and oral submissions from counsel. After hearing argument, Justice Beaton rendered a comprehensive oral decision which has not been reported.

Accordingly, I will reproduce the operative provisions of her Order for Costs issued December 14, 2015: Upon reading the submissions filed on behalf of the Petitioner, Drew Cameron Gordon Bethune, and the Respondent, Kathleen Marie Bethune; Upon reading the affidavit of Sara L. Scott, filed on behalf of the Petitioner and the affidavits of Kathleen Marie Bethune and Maureen LeBlanc, filed on behalf of the Respondent; Upon hearing submissions from William L. Ryan, on behalf of the Petitioner, and Christine Doucet, on behalf of the Respondent; On motion of the Petitioner, the following is ordered: 1.

The Court shall exercise its discretion and apply the rule of thumb approach to set the amount involved at trial pursuant to Tariff A; 2. Costs shall be awarded to the Petitioner in the amount of $13,250, reflecting the amount involved of $60,000 and applying Scale 2 of Tariff A; 3. Disbursements shall be awarded to the Petitioner in the amount of $1,423.76; and 4. The costs and disbursements awarded to the Petitioner shall be off-set against the amount to be paid by the Petitioner to the Respondent as the equalization payment under the Matrimonial Property Act . [ 3 ] Notwithstanding the able submissions of Ms.

Doucet, after a thorough review of the record before us today, we are unanimously of the view that while leave is granted, the appeal ought to be dismissed. In awarding costs, Justice Beaton properly applied the law, did not misapprehend the evidence, addressed all material issues, made findings of fact all reasonably supported on the

evidence and which were not challenged as a ground of appeal, and reached a decision that did not produce a manifest injustice. Having presided over this trial, its many substantial issues, and the unique circumstances the case presented, Justice Beaton was in the very best position to decide who, in her view, was the “successful party” to whom costs and disbursements ought to be awarded, and in what amount.

In our view, she exercised her discretion judicially and there is nothing here to warrant our intervention. [ 4 ] The appeal is dismissed with costs to the respondent in the amount of $5,300 representing 40% of the costs awarded at trial, plus $500 for disbursements on appeal, plus $750 for costs inclusive of disbursements that were ordered in the cause on the motion heard April 20, 2016 to address the appellant's request to file a Supplemental Appeal Book. Bourgeois, J.A. Saunders, J.A. Van den Eynden, J.A.