Nurse v. Holden, 2020 NSSC 110

Supreme Court of Nova Scotia Citation: Nurse v. Holden , 2020 NSSC 110 Date: 2020-03-20 Docket: SFHMCA No. 089032 Registry: Halifax Between: Laura Nurse Applicant v. Robert Holden Respondent Library Heading Judge: The Honourable Justice Theresa M. Forgeron Written Filings: December 9, 13, and 17, 2019 and January 16, 2020 Decision Date: March 20, 2020 Key Words: Costs, Self-represented party, Lost opportunity costs, Impecuniosity and inability to pay costs, Disbursements Legislation: Nova Scotia Civil Procedure Rules , Rule 77

Summary: The self-represented father sought approximately $10,000 in costs, including compensation for lost wages. The mother proposed that each party bear their own costs because of the mixed success and her impecuniosity. In addition, the parties did not agree on the form of the order. Issues:

(1) What is the appropriate award of costs?

(2) What is the appropriate form of order? Result: The Court found: • As a self-represented litigant, the father performed work that would ordinarily have been performed by a lawyer; • The father was substantially successful at trial; • The trial was lengthy. The mother should not have contested primary care and final decision- making; • The mother did not apply “as soon as possible” pursuant to Rule 77.04 for insulation from costs; • The mother’s settlement offer was not afforded significant weight. The offer was made after the trial commenced.

The decision was more favourable to the father than the terms of the settlement offer. As a result, the mother was ordered to pay the father costs of $5,250, including disbursements. The mother was given time to pay the costs given her limited financial resources. The form of order was clarified. THIS INFORMATION SHEET DOES NOT 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: Nurse v. Holden, 2020 NSSC 110 Date : 2020-03-20 Docket: SFHMCA No.089032

Registry : Halifax BETWEEN: Laura Nurse Applicant v. Robert Holden Respondent Decision on Costs and Form of Order Judge: The Honourable Justice Theresa M. Forgeron Written Filings : December 9, 13, and 17, 2019 and January 16, 2020 Decision Date: March 20, 2020 Counsel: Danika Beaulieu for the Applicant, Laura Nurse Robert Holden, Respondent, Self-Represented By the Court: Introduction [ 1 ] This decision concerns two issues flowing from my December 2019 decision reported at Nurse v. Holden , 2019 NSSC 358 . First, Mr. Holden seeks about $10,000 in costs. In contrast, Ms.

Nurse proposes that each party bear their own costs. Second, the parties do not agree on the form of the order, including details related to s. 7 expenses. [ 2 ] The parties were directed to file materials to support their positions. Mr. Holden filed an affidavit and correspondence on December 9 and 17. Ms. Nurse filed her materials on December 13, 2019 and January 16, 2020. I reviewed and considered the materials supplied by the parties. [ 3 ] This decision will resolve the outstanding issues. Analysis What is the appropriate award of costs? Position of Mr. Holden [ 4 ] Mr.

Holden states that he was the successful litigant. He seeks costs of $9,934.50, payable at a rate of $150.00 per month until paid in full. The following are some of the factors Mr. Holden asked me to consider: • He was unable to work while attending the seven-day trial. Lost wages totaled $1,225 based on Mr. Holden’s hourly rate of $25.00. In addition, Mr. Holden attended court in excess of 10 other days to address Ms. Nurse’s applications, thereby forfeiting an additional $1,750 in lost wages. • He spent significant personal time preparing for the contested hearing.

• He spent about $318 in travel based on the following formula: 73.8 km per round trip x $0.25 per km x 17 trips. • He spent $250 in printing and photocopying charges. • He spent more than $55,000 in legal fees during previous court proceedings to obtain an order which Ms. Nurse refused to follow. In consequence, Mr. Holden had to quit his job to remain at home to care for Teagan. Mr. Holden estimates that the total lost in wages and legal costs was $271,750. • Mr. Holden represented himself because he did not qualify for legal aid and could no longer afford a private lawyer. • Mr.

Holden’s savings and inheritance were consumed by this unnecessary court proceeding. The proceedings negatively impacted his ability to save for Teagan’s education. Position of Ms. Nurse [ 5 ] Ms. Nurse states that each party should bear their own costs for reasons which include the following: • Success was mixed. Ms. Nurse succeeded in vacating the prohibitions against Craig Layton. Ms. Nurse was partially successful in the parenting

schedule that was adopted, together with some of the child support issues. • Ms. Nurse provided a settlement offer in which she conceded primary care to Mr. Holden. Mr. Holden refused this offer and did not attempt to negotiate thereafter. • Ms. Nurse incurred her own legal fees and disbursements in the amount of $49,334.93. If Ms. Nurse’s settlement proposal had been accepted, she would have saved $14,717.00 in legal fees. • Ms. Nurse is of limited financial means. This is a consideration in family proceedings: Cameron v.

Cameron , 2006 NSCA 76 . • The hearing was lengthened because the parties’ direct evidence was presented viva voce and not by affidavits. This was required in large part because of the significant amount of opinion, hearsay, and argument contained in Mr. Holden’s lengthy affidavit filed on February 19, 2019. • It is inappropriate to base costs on court proceedings which were previously concluded. Law on Costs [ 6 ] Rule 77 governs awards of costs in matters before the Supreme Court of Nova Scotia. In Armoyan v. Armoyan , 2013 NSCA 136 , Fichaud, J.A., reviewed the principles to be applied when determining costs.

The following relevant points stem from that decision: • The court's overall mandate is to "do justice between the parties": para. 10. • Unless otherwise ordered, party and party costs are quantified according to the Tariffs. The court has discretion to raise or lower the Tariffs applying listed factors, which include unaccepted written settlement offers and the conduct of the parties insofar as it affects the speed or expense of the proceeding: paras. 12 and 13. • The Rule permits the court to award lump sum costs and depart from the Tariffs in specified circumstances.

Tariffs are the norm and there must be a reason to consider a lump sum: paras. 14 and 15. • The basic principle is that a cost award should afford a substantial contribution to the party's reasonable fees and expenses which means not a complete indemnity, but rather more than 50 and less than 100% of a lawyer's reasonable bill for services: para. 16. • The Tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventional case whose circumstances conform generally to the parameters assumed by the Tariffs.

Some cases, however, bear no resemblance to the Tariffs’ assumptions.

For example, a proceeding begun nominally as a chambers motion may assume trial functions; a case may have no "amount involved"; efforts may be substantially lessened by the efficiencies of capable counsel, or handicapped by obstructionism; the amount claimed may vary widely from the amount awarded; the case may assume a complexity with a corresponding work load that is far disproportionate to the court time by which costs are assessed under the tariffs; there may be rejected settlement offers, formal or informal, that would have saved everyone significant expense: paras. 17 and 18. • When subjectivity exceeds a critical level, the Tariffs may be more distracting than useful.

In such a situation, it is more realistic to circumvent the Tariffs and channel that discretion directly to the calculation of a lump sum. A principled calculation should turn on the objective criteria that are accepted by the Rules or case law: para. 18. [ 7 ] Two other points are noteworthy. First, Mr. Holden is self-represented. Costs for self-represented parties are not calculated in the same manner as costs for parties represented by counsel: Crewe v. Crewe , 2008 NSCA 115 ; D.E.M. v. J.M.M ., 2012 PECA 7 ; Bruno v. Keinick , 2012 NSSC 434 ; and BM v ALG , 2015 NSSC 51 .

The helpful comments of Freyer, J. in Browne v. Cerasa, 2018 ONSC 2242 have also been considered. In

summary, I may award costs to self-represented litigants for loss opportunity if the self-represented party performed work that would ordinarily have been performed by a lawyer. Costs, however, are not calculated on the same basis as a damage award. Further, a self-represented litigant cannot claim costs for the time and effort that they would have expended if they were represented by a lawyer. [ 8 ] The second relevant point concerns Ms. Nurse’s claim of impecuniosity. If a party wants insulation from costs, they must successfully apply to do so pursuant to Rule 77.04.

Such motion must be made as “soon as possible” after the application/response is contested: Canadian Residential Inspection Services Ltd. v. Swan 2013 NSSC 226 and Hatfield v. Intact Insurance Co ., 2014 NSSC 288 . Otherwise, difficult financial circumstances do not preclude an award of costs. For example, unsuccessful litigants who were

represented by legal aid can be ordered to pay costs: S. v. M. (1996) (NS CA), 157 N.S.R. (2d) 156 (C.A.) and Leighv. Milne, 2010 NSCA 36 wherein Mr. Milne was stated to have free legal representation at para 54. Further, the one sentence commentof Bateman, JA in Cameron v. Cameron, supra, does not detract from this principle. I note that although Bateman, JA referred to themother’s limited financial circumstances, she nonetheless ordered costs. Appeal costs tend to be less than costs awarded at the trial level. Decision on Costs [9] I award costs of $5,250, inclusive of disbursements, to Mr.

Holden as a self represented litigant in the circumstances of thiscase. Although Ms. Nurse achieved some level of success, I find that Mr. Holden was the more successful party. For example, primarycare and final decision-making were granted to Mr. Holden. Further, although Ms. Nurse was successful in having the restrictionssurrounding Mr. Layton vacated, conditions are nonetheless attached. Financially, Mr. Holden was granted retroactive and prospectivechid support, inclusive of s.7 expenses, albeit for a lesser period of time than requested. In the circumstances, I find that Mr.

Holden wassubstantially successful. [10] The cost award also encompasses the following factors: • Costs are granted in respect of this application only. I have no jurisdiction to award costs for prior court applications that wereconcluded. • The hearing was lengthy and hotly contested. The hearing proceeded with viva voce direct evidence because affidavits submittedcontained inadmissible material. Further, in a parenting dispute where credibility plays a critical role, viva voce evidence is preferred. • Mr.

Holden lost the opportunity to work and to engage in personal pursuits while performing matters that would ordinarily beconducted by counsel. Unfortunately, Mr. Holden was not trained in the law. This likely contributed to more time being expended thannecessary in meaningful preparation. Further, the lack of legal training also contributed to the creation of documents which, at times,were less than helpful. Some of Mr. Holden’s efforts were neither reasonable nor proportional. • Although not always producing meaningful materials or acting in an efficient manner, Mr.

Holden did not conduct himself in avexatious manner. Mr. Holden did not attempt to mislead the court. • Ms. Nurse should not have contested primary care or final decision-making. It was unreasonable for Ms. Nurse to do so for thereasons outlined in my decision, especially those found at paras 52 – 86 and 94 - 95. The hearing would have been significantly reducedand focused had these issues not been contested. • The parenting and maintenance issues were of great importance to the parties and to six-year-old Teagan. • Ms.

Nurse did not file a motion pursuant to Rule 77.04 at the outset of the proceeding; she is not insulated from an award of costs. • Neither party is flush with money. • There is no justifiable reason to deny Mr. Holden costs as he is the substantially successful party. • Mr. Holden’s disbursements for printing and photocopies are reasonable. [11] In reaching this decision, I attach little significance to the March 23, 2019 settlement offer for three reasons. First, the informaloffer was made after the contested hearing had commenced.

By this time, evidence was adduced, trial preparation completed, and manyexpenses and loss opportunity costs already incurred. Second, the offer contained several provisions, none of which were noted to beseverable. Third, my decision did not mirror the provisions of the settlement offer. Examples include the following: • The settlement proposed joint decision-making. My Decision provided Mr. Holden with final decision-making authority. • The settlement proposed that Ms.

Nurse would exercise parenting time every second weekend from Friday after school untilSunday evening, together with a right of first refusal when Mr. Holden was unavailable for more than four hours. My Decision grantedone overnight per weekend and no right of first refusal. My Decision did not provide for the holiday and vacation time proposed by Ms.Nurse. • The settlement proposed “no restrictions regarding Ms.

Nurse’s ability to parent Teagan in Craig Layton’s residence or presence.” Although my Decision lifted the Craig Layton restrictions, it did so with the specific conditions noted in para. 38 of my Decision. • My Decision granted more favourable child support than contemplated in the settlement offer. [12] Given Ms. Nurse’s financial position, costs are payable to Mr. Holden at a rate of $100 per month until the award is paid in full. [13] What is the appropriate form of the order? [14] Position of the Parties [15] Mr. Holden raised two concerns about the order drafted by Ms. Beaulieu.

First, he did not believe that his income would be$40,000 in 2019. Second, he felt that the s.7 expenses were not appropriately stated. Mr. Holden said that he spent $1,158 in daycarecosts at Westwood Day Camp and $2,470 for health insurance for Teagan. [16] For her part, Ms. Nurse sought a credit for past child care expenses based on a discount for notional tax savings. [17] Decision

[ 18 ] An order must reflect the decision of the judge. The

preamble correctly states that Mr. Holden was anticipating earning an annual income of approximately $40,000 for 2019. [ 19 ] The provisions dealing with s.7 child care expenses must likewise reflect my decision. Mr. Holden asks the court to consider additional evidence concerning the cost of child care that was not lead during the hearing. I decline to do so because such evidence was available at the time of the hearing and should have been introduced then. [ 20 ] Further, I omitted to include the provision that Ms.

Nurse must contribute 50% of the cost of the health care premiums for Teagan, which is calculated by subtracting the cost of a single person plan from the cost of a family plan, effective January 1, 2020. I decline to make an award retroactive to an earlier date given the circumstances and my other rulings. [ 21 ] In respect of Ms. Nurse’s request, a notional discount for the child care amounts paid by Ms. Nurse is not approved because Mr. Holden will not be able to claim those payments. [ 22 ] In addition, there is a typographical error in clause 9.

It should state: “Each party may communicate with”, not “ communication ”. Conclusion [ 23 ] Ms. Beaulieu is directed to redraft the Variation/Review Order as provided in this Decision. Forgeron, J.