Tobin v. Tobin, 2017 NSSC 351

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Tobin v. Tobin , 2017 NSSC 351 Date: 2017-06-08 Docket: 1201-061396 Registry: Halifax Between: Kevin Tobin Petitioner v. Claire Tobin Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore

Summary: Costs of $7,313.00 awarded where application to vary parenting order was dismissed and prospective and retroactive child support awarded. Key words: Family, Costs Legislation: Nova Scotia Civil Procedure Rules, Rules 77.02(1), 77.02(2), 77.03(3), 77.04, Tariff A THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Tobin v. Tobin , 2017 NSSC 351 ENDORSEMENT Kevin Tobin v.

Claire Tobin 2007; Prothonotary Number 1201-061396 June 8, 2017 • Kenzie MacKinnon, Q.C. for Kevin Tobin • Linda Tippett-Leary for Claire Tobin Kevin Tobin requests that I reconsider my decision to award retroactive child support of $6,451.65 under clause 7(1)(

a) of the Federal Child Support Guidelines for 2010 and 2011 Claire Tobin requests costs of $12,245.00 on the Basic Scale under Tariff A, based on a hearing of three and one-half days, with an

additional amount of $750.00 – $1,000.00 for a motion requiring less than one half-day. Total costs requested are in the range of $13,000.00 to $13,250.00. Decision: Kevin Tobin’s retroactive child support payment to Claire Tobin for child care expenses incurred in 2010 is reduced by $94.30 from $4,526.40 to $4,432.10. Kevin Tobin shall pay costs of $7,313.00 to Claire Tobin on or before October 31, 2017. Reasons: Child support review 1 . In my oral decision rendered on December 21, 2016, I awarded Ms. Tobin retroactive child support which included a proportionate share of Ms.

Tobin’s 2010 and 2011 child care expenses: he would contribute $4,526.40 for child care costs in 2010, and $1,925.00 for child care costs in 2011. 2 . Mr. Tobin says that Ms. Tobin’s child care expenses in 2010 and 2011 weren’t occasioned because of Ms. Tobin’s “employment, illness, disability or education or training for employment” as required by clause 7(1)(

a) of the Federal Child Support Guidelines . He says that the income shown on her tax returns suggests she didn’t require child care. He does not challenge the amounts used in my calculation. 3 . Ms. Tobin’s evidence was that in 2009 – 2011, Mr. Tobin would spend two days each month with the boys, who were then in the early years of elementary school. 4 . Ms. Tobin’s 2010 Notice of Assessment shows she received money from a business which she operated. It grossed $12,745.00 and netted $9.633.00 in 2010. She was also pursuing an education. The assessment reflects $2,875.00 paid in eligible tuition fees. 5 .

I find that Ms. Tobin’s child care expenses in 2010 were occasioned by her self-employment and education. 6 . According to her 2011 Notice of Assessment, Ms. Tobin’s business grossed $9,082.00 and netted $4,521.00. She was continuing to pursue her education. Her 2011 assessment reflects $2,835.00 paid in eligible tuition fees. 7 . I find that Ms. Tobin’s child care expenses in 2011 were occasioned by her self-employment and education. 8 . I understated Ms. Tobin’s 2010 income for child support purposes in my calculations. 9 . In 2010, Ms. Tobin’s income from line 150 of her tax return was $10,988.00.

She had child care costs of $4,715.00. Her income was too low for these expenses to have any impact on her taxes. Mr. Tobin earned $176,367.00, so his proportionate share of the child care costs would be 94% or $4,432.10. This is $94.30 less than I had previously calculated and I reduce Mr. Tobin’s retroactive child support payment by $94.30. Costs 10 . On September 27 and 28, 2016 I heard evidence in a variation application where parenting time, prospective child support, and retroactive child support were at issue. I heard submissions and rendered an oral decision in December 2016. 11 . Mr.

Tobin applied to vary his sons’ parenting arrangement. He sought shared parenting. 12 . I found there was a change in circumstances and I varied the parenting arrangement, imposing a

schedule on the children’s access with their father. 13 . Mr. Tobin argues parenting was the main issue and says he succeeded on this issue where the complaints which prompted his application were resolved by the varied parenting arrangement I imposed, though I did not order a shared parenting arrangement. 14 . It is not clear that my order increased the boys’ access with their father. 15 . I can only determine whether Mr. Tobin was successful in his parenting claim by comparing the result against his pleadings or a settlement offer. He did not achieve the relief he claimed and I am aware of no settlement offer, formal or otherwise.

16. Mr. Tobin’s satisfaction with the ultimate result doesn’t assist me in determining whether he was successful. Our rules on costs areintended to encourage rational litigation: knowing what relief is sought, being able to assess the likely success or failure of an opponent’sposition (and one’s own), and negotiating effectively. I understand that pleadings can be positional. If Mr. Tobin wanted a structuredaccess schedule, that is what he should have claimed, or – if his pleadings were positional – that is what he should have proposed in asettlement offer.

For the purposes of determining costs, I cannot measure success against his satisfaction with the outcome. 17. Ms. Tobin applied to vary child support prospectively and retroactively. Mr. Tobin didn’t increase his child support paymentsthough his income increased dramatically. In conciliation, he said he owed more child support, and he never denied his obligation underthe Federal Child Support Guidelines. Regardless, Mr. Tobin did ignore his obligation, and Ms. Tobin was successful on these claims. 18. I found that Mr. Tobin owed retroactive child support of $32,565.05.

In this endorsement, I have reduced this amount to$32,470.75. 19. Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. Costs are in my discretion. A decision not toaward costs must be principled. 20. Civil Procedure Rule 77.02(1) states that I “may, at any time, make any order about costs as [I am] satisfied will do justice betweenthe parties.” 21. Costs should constitute a “substantial indemnity” to the successful party’s actual legal expenses. 22. To apply Tariff A, I must know the amount involved in the case.

According to Tariff A, where there’s a substantial non-monetaryissue involved, the amount involved is determined having regard to the complexity of the proceeding and the importance of the issues. This proceeding was of typical complexity and importance. 23. In both Collins v. Speight (NS SC), and in Wyatt v. Franklin (NS SC), Justice Goodfellowconcluded that the amount involved in two and one-half day trials was $45,000.00. Collins v. Speight (NS SC), was acase involving a dispute over an entitlement to a right of way and Wyatt v. Franklin (NS SC), was a land dispute.

Justice Goodfellow described both as not complex. Later, in Toronto Dominion Bank v. Lienaux, (NS SC), JusticeGoodfellow suggested a general rule for cases where a substantial non-monetary issue was involved. He said that he treated each day orpart day of the trial as equivalent to $15,000.00 for the purpose of determining the “amount involved”. 24. In 2007, Justice Lynch reviewed this general rule in Jachimowicz, 2007 NSSC 303 , at paragraph 26.

There, the parentingtrial took approximately thirteen days: six days of evidence from the initial trial, five days of review evidence, and numerous otherappearances which added approximately two more days. She adjusted the daily equivalent amount from $15,000.00 to $20,000.00 “toreflect the increased costs of litigation.” 25. This trial was three days long (from late September to late December 2016). In addition, there was an unsuccessful motion shortlybefore trial for a Voice of the Child Report. Ms. Tobin seeks costs of that motion: costs were not addressed at that time.

The motionwas combined with a conference which together took less than one hour. I decline to consider this in determining the length of the trial. Similarly, I do not consider the time spent on Mr. Tobin’s 2015 motion for the children’s return from British Columbia. Mr. Tobinfailed in his motion for a Voice of the Child Report, but his request at the motion in 2015 was reasonable. In effect, each party bears itsown costs on these motions because each succeeded at one and failed at the other. 26. Ms.

Tobin argues that the time spent in settlement conference should be considered when I determine the “length of trial”. I rejectthis. To consider the settlement conference as part of the trial when determining costs would create a disincentive to participate insettlement conferences. Current case law shows that settlement conferences are already becoming a battle ground for costs, decreasingtheir utility as a safe forum in which parties can explore settlement at no risk. 27. Applying Tariff A’s Basic Scale, the “amount involved” in a three day trial is $60,000.00.

The Tariff adds $2,000.00 for each day oftrial, bringing the total to $66,000.00. This is at the low end of the range from $65,000.00 to $90,000.00. 28. I may consider a party’s ability to pay costs in making a costs award. Mr. Tobin claims he is not able to pay. He is not employedand receives disability insurance benefits. 29. Mr. Tobin’s annual income still greatly exceeds Ms. Tobin’s. Her means to pay her legal fees are less than his. 30. The retroactive support Mr. Tobin has paid to Ms.

Tobin is not for her expenses, it is for Grant and Mark, who have gone withoutthe child support due to them for many years when Mr. Tobin’s income greatly exceeded the amount on which his support payments

were based. 31 . Having regard to Ms. Tobin’s success and the fact that the amount involved is on the low end of the range, I order Mr. Tobin to pay Ms. Tobin costs of $7,313.00 by October 31, 2017. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)