Qu v. Calvesbert, 2020 NSSC 115

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Qu v. Calvesbert, 2020 NSSC 115 Date: 2020-03-30 Docket: 1201-068126/SFHD - 92661 Registry: Halifax Between: Hong (Emily) Qu Petitioner v. David Calvesbert Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: Submissions from Diana M. Musgrave for David Calvesbert, March 9, 2020 Submissions from Kelsey E. Hudson for Emily Qu, March 25, 2020

Summary: Costs of $12,750 awarded following unsuccessful application to vary primary care and joint custody. Key words: Costs Legislation : Civil Procedure Rule 77.03(3), 77.04 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) Qu v. Calvesbert , 2020 NSSC 115 ENDORSEMENT March 30, 2020 Hong “Emily” Qu v. David Calvesbert 2014; Prothonotary No. 1201-68126; SFH-D 92661 • Kelsey E. Hudson for Emily Qu (submissions on March 25, 2020) • Diana M.

Musgrave for David Calvesbert (submissions on March 9, 2020) David Calvesbert requests costs of $12,750 inclusive of disbursements, following a 2-day variation application. Decision: 1 . Emily Qu must pay David Calvesbert $12,750 no later than October 30, 2020.

Reasons: 2 . Emily Qu asked that the couple’s daughter be permitted to move to Ontario. If she was allowed to move, I would need to decide what the new arrangements would be for parenting time with Mr. Calvesbert and child support. A significant issue at the 2-day hearing – and one which was ultimately dispositive of the application – was whether there was a material change in circumstances. 3 . Additionally, there were 2 issues to be decided before the hearing: • Whether the report of Radhika Sundara (which was part of Ms.

Qu’s case) should be admitted as an expert’s report; and • Whether certain portions of various affidavits should be struck as inadmissible. 4 . I decided that Ms. Sundara’s report was not admissible as an expert’s report. 5 . Mr. Calvesbert filed a motion to strike 55 paragraphs from affidavits filed by or on behalf of Ms. Qu. . Mr. Calvesbert was successful in having most of these paragraphs struck because they contained hearsay statements from the children without any information to allow me to assess the statements’ threshold reliability, whether procedural or substantive. 6 . Ms.

Qu asked to strike 7 paragraphs from affidavits filed by or on behalf of Mr. Calvesbert. She was less successful. 7 . I found that there was no material change in circumstances, so I dismissed Ms. Qu’s variation application: Qu v. Calvesbert , 2020 NSSC 83 . 8 . Civil Procedure Rule 77.03(3) provides that “Costs of a proceeding follow the result”. Costs are in my discretion. A decision not to award costs must be principled. Ms. Qu says there are 2 principled reasons why she should not be ordered to pay costs to Mr.

Calvesbert: • A costs order would jeopardize her ability to support Dominik, who lives with her, and to afford the cost of travel associated with Alyssa’s access • Fear of a costs award should not deter a parent from pursuing a claim relevant to a child’s best interests. 9 . To the extent that Ms. Qu seeks protection from a costs order because of her financial circumstances, Civil Procedure Rule 77.04 allows a party to do this. However, it must be done before the hearing, when it might have had an impact on how Mr. Calvesbert responded to her claim. 10 . Ms.

Qu argues that the economic consequences of the COVID-19 state of emergency in Ontario, where she lives, call into question the stability of her financial circumstances. She works for an airline: she is not flight staff, she’s a member of a management team. 11 . I have no evidence that she has lost her employment or that her income has been affected. 12 . Mr. Calvesbert, too, lives in a province where a state of emergency has been declared. He, too, provides for the needs of one of the couple’s children. His financial circumstances may be equally unstable, jeopardizing his ability to support Alyssa. 13 .

Given the parties’ incomes and their split parenting arrangement, Ms. Qu would pay child support to Mr. Calvesbert. She does not pay child support because she pays Alyssa’s access costs. 14 . Alyssa’s access costs are likely postponed until the state of emergency has ended and health concerns no longer impact air travel. 15 . Both parties will feel the economic consequences of the COVID-19 state of emergency. I should not shield Ms. Qu while leaving Mr. Calvesbert exposed. 16 . The prospect of a costs order ought not deter a parent from litigating a bona fide parenting claim: S . N. v.

I.F , 2009 NSSC 23 , Tamlyn v. Wilcox , 2010 NSSC 363 and Goodrick v. Goodrick , 2009 NSSC 119 .

17 . Because Ms. Qu didn’t prove there was a material change in circumstances, I never moved on to determine whether there was a bona fide claim. This is not a principled reason to deny Mr. Calvesbert costs. 18 . Costs awards are a caution to litigants about making claims that have little chance of success. They remind litigants to base their claims on admissible and relevant evidence. Where litigants are resistant to legal advice, costs awards may add emphasis to that advice. 19 . Mr. Calvesbert’s submissions include an affidavit outlining total fees, disbursements and taxes of $25,137.17.

The hearing took 2 days. There were 7 witnesses, including the parties. Before the hearing, there was an hour-long motion to strike Ms. Sundara’s report. The fees are reasonable. 20 . Mr. Calvesbert seeks a contribution of $12,750.00 – approximately half of his expense. 21 . Costs are to provide a substantial contribution to the successful party’s reasonable fees: Armoyan v. Armoyan , 2013 NSCA 136 , at paragraph 16 . So, the affidavit must provide information that enables me to assess the reasonableness of the fees. 22 . A contribution covering approximately one-half of Mr.

Calvesbert’s reasonable expense is appropriate. 23 . Ms. Qu must pay Mr. Calvesbert costs of $12,750 no later than October 30, 2020. Direction: 24 . I have prepared the order which I enclose. _____________________________ Elizabeth Jollimore, J.S.C.(F.D.)