Hicks v. Verge, 2017 NSSC 358

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Hicks v. Verge , 2017 NSSC 358 Date: 2017-08-02 Docket: SFH-MCA 091375 Registry: Halifax Between: Kelly Hicks Applicant v. Cameron Verge Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore

Summary: Costs of $6,000.00 plus disbursements to be taxed awarded after successful application by mother to vary parenting order to permit change of the child’s residence. Key words: Family, Costs Legislation: Nova Scotia Civil Procedure Rules, Rules 77.02(1), 77.02(2), 77.03(3), 77.04(2)(

a) and (b), 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: Hicks v. Verge , 2017 NSSC 358 ENDORSEMENT Kelly Hicks v. Cameron Verge 2014 SFH-MCA 091375 August 2, 2017 • Michael G. Owen for Kelly Hicks • Morgan Manzer for Cameron Verge Request for costs of $7,813.00 plus disbursements, based on a hearing of one day. Decision: Mr. Verge shall pay Ms. Hicks costs of $6,000.00 and her disbursements (to be taxed or agreed upon) no later than December 31, 2017.

Reasons: 1. The sole issue at the hearing was whether Ms. Hicks could change her residence and that of Joel, from Middle Sackville toWindsor. 2. Ms. Hicks filed her variation application on August 18, 2016. 3. Mr. Verge was notified of a conciliation meeting in this proceeding by mid-September 2016. 4. Ms. Hicks was successful in her application. 5. Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. Costs are in my discretion. Adecision not to award costs must be principled. 6. Civil Procedure Rule 77.04 permits a party to make a motion for an order that he or she is to pay no costs in the proceedingin which a costs claim is made. 7. Rules 77.04(2)(

a) and (

b) require that this motion “must be made as soon as possible after” the party is notified of theproceeding or the party’s claim is defended or contested. 8. Ms. Hicks did not claim costs in her application. Mr. Verge did not bring a motion for relief from liability to pay costs. 9. Under Civil Procedure Rule 77.02(2) I have a general discretion to award costs to do justice between the parties. I mayaward costs even where they were not claimed. 10. Representation by Legal Aid counsel does not immunize a party against an order for costs. This can only be done by amotion under Rule 77.04. 11. Mr.

Verge argues that he has no ability to pay. I may consider a party’s ability to pay costs in making a costs award. 12. In M.C.Q. [sic M.Q.C.] v. P.L.T., 2005 NSFC 27 , Judge Dyer reminded me that some litigants may “consciouslydrag out court cases at little or no actual cost to themselves (because of public or third party funding) but at a large expense to others whomust “pay their own way”.” If this happens, he said, “Fairness may dictate that the successful party’s recovery of costs not be thwartedby later pleas of inability to pay. [See A.E.M. v. R.G.L., 2004 BCSC 65 ].” 13.

Justice Gass explained the rationale for refusing to award costs in cases of impecuniosity: “Any order of costs should nothave an adverse impact on the children's emotional or material well being. Access with their father is important for their emotional wellbeing and the child support obligations are critical to their material well being.”: Connelly, 2005 NSSC 203 at paragraph 7. Mr.Connelly faced significant access costs and had been ordered to pay substantial arrears of child support.

He argued that an award of costswould cause him considerable financial hardship and impair both his ability to exercise access to his children and to meet his childsupport obligation. Justice Gass declined to award costs against Mr. Connelly. 14. Here, Mr. Verge makes no child support payments. Access transportation costs are paid by Ms. Hicks. Mr. Verge lives withfamily and has limited expenses. Mr. Verge’s cellphone bill and vehicle expenses were claimed on his Statement of Expenses though hedoes not pay these bills. 15. Mr.

Verge annually overpays his source deduction of income tax: in each of the past three years, he has received an incometax refund of more than $2,000.00. His financial circumstances have not required him to reduce his source deduction of tax. 16. As the sole shareholder of Hammer Heads Corp., Mr. Verge determines his own salary. He testified that his company alsopays his cellphone bill and his vehicle expenses. The company has a chequing account at the TD Bank with a balance of more than$52,000.00 and retained earnings of approximately $29,000.00. 17. Mr.

Verge argues that the company’s retained earnings are “prudent fiscal management for accounts payable”. There is noevidence to support this argument. 18. Mr. Verge does not have “an inability to pay”.

19. To apply Tariff A, I must know the amount involved in the case. According to Tariff A, where there’s a substantial non-monetary issue involved, the amount involved is determined having regard to the complexity of the proceeding and the importance of theissues. 20. In both Collins v. Speight (NS SC), and in Wyatt v. Franklin (NS SC), JusticeGoodfellow concluded that the amount involved in two and one-half day trials was $45,000.00. Collins v. Speight (NS SC), was a case involving a dispute over an entitlement to a right of way and Wyatt v. Franklin (NS SC), was aland dispute.

Justice Goodfellow described both as not complex. Later, in Toronto Dominion Bank v. Lienaux, (NSSC), Justice Goodfellow suggested a general rule for cases where a substantial non-monetary issue was involved. He said that he treatedeach day or part day of the trial as equivalent to $15,000.00 for determining the “amount involved”. 21. In 2007, Justice Lynch reviewed this general rule in Jachimowicz, 2007 NSSC 303 , at paragraph 26.

There, theparenting trial took approximately thirteen days: six days of evidence from the initial trial, five days of review evidence and numerousother appearances which added approximately two more days. She adjusted the daily equivalent amount from $15,000.00 to $20,000.00“to reflect the increased costs of litigation.” 22. I find the amount involved to be $20,000.00. On the basic scale this generates an award of $4,000.00. To this, I am to add$2,000.00 for each day of trial. 23. The hearing required a full day: one half day to hear the evidence and approximately one half day for argument and mydecision. 24.

Though present at the pre-trial conference and aware of filing deadlines, Mr. Verge did not meet the deadlines imposed. Thisis a complicating factor as it left Ms. Hicks and her counsel to address last minute filings. Because of counsels’ efficiency in concludingthe hearing expeditiously in a single day, I find the basic scale remains appropriate. 25. Having regard to the amount involved and the duration of the hearing, I order Mr. Verge to pay Ms. Hicks costs of$6,000.00. This amount is not inclusive of disbursements. Mr. Verge shall pay Ms. Hicks’ disbursements, as agreed upon or taxed.

Mr.Verge must pay these costs no later than December 31, 2017. 26. I decline to make this order against Mr. Verge’s company for two reasons. 27. First, while there is authority for “piercing the corporate veil” in the context of property and support claims, I know of noauthority for doing so in costs claims. 28.

Second, the legal tests which typically apply for piercing the corporate veil (the “alter ego” test where the corporation’sseparate legal personality is used as a shield for fraudulent or improper conduct, and the “flagrantly unjust” test where it would becontrary to justice and equity to allow a person to hide behind a corporation) have not been addressed or satisfied. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)