Wall v. Leedham, 2020 NSSC 249

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Wall v. Leedham , 2020 NSSC 249 Date: 2020-09-11 Docket: SFHMCA 60560 Registry: Halifax ENDORSEMENT September 11, 2020 Michael Patrick Wall and Heather Irene Leedham Court File No. SFHPSA 114648 Tanya G. Nicholson, for Michael Wall Deborah I. Conrad, Q.C., for Heather Leedham Appearances: • July 17, 2019 a pre-trial conference was held between 10:02 and 10:32 am.

The parties consented to certain without prejudice interim parenting arrangements, and to the production of both child welfare and police records. • September 30, 2019 an interim hearing was scheduled from 2:00 pm to 4:30 pm. The hearing commenced at 14:46 and ended at 16:26. The matter was adjourned for an oral decision. • October 2, 2019, an oral decision was scheduled from 9:30 am to 10:30 am. The Court opened at 9:45am and ended 10:43 am. • I find it took more than half a day in court to resolve interim parenting arrangements by way of contested interim hearim.

Decision: Costs are awarded in the amount of $2000.00 payable by Ms. Leedham to Mr. Wall by January 1, 2021. Requests / submissions: Mr. Wall requested the Court award an Order for Costs payable to him by Ms. Leedham in the amount of $3,500.00. He argued this would be a substantial contribution to his legal fees, per the Armoyan approach. Mr. Wall argued that the Court granted, “essentially what he requested on May 3, 2019”. Ms.

Leedham argued “success was divided, and that each party ought to bear his/ her own costs, or that costs in the cause be awarded after a full hearing of the matter.” Ongoing proceeding re: full hearing of the matter The parties attended a Judicial Settlement Conference on November 18, 2019. Based on correspondence from counsel to the court, in November 2019 the parties did agree to certain terms for custody, parenting, and property (with the exception of Mr. Wall’s pension), which were to be included in an Order to be drafted by counsel for Mr. Wall.

I understand the Order arising from the Settlement Conference held in November 2019 was to include a term for the parties to return before the previous settlement conference judge for a review of parenting terms. In addition to parenting, the issue of Mr. Wall’s pension, and the issue of financial support appear to be outstanding. However, on June 15, 2020, Ms. Leedham wrote to the court advising that the parties were unable to agree on terms to be included in the Order arising from the Judicial Settlement Conference held in November 2019.

It is unclear whether the parties will be successful in resolving their issues with the assistance of a further judicial settlement conference, or whether the parties will

schedule final trial dates. As such, I am not prepared to have costs dealt with “in the cause” as suggested by Ms. Leedham.

Pending any final resolution, the parties are entitled to an Interim Order being issued from this Court following the hearing held in September 2019, and they are entitled to an answer regarding Mr. Wall’s request for costs following the interim hearing Reasons: 1 . The parties began living together in December 2008. The parties’ relationship broke down in June 2018 but both parties continued to have access to the home until early March 2019. In March 2019 Mr. Wall was charged with assault, and he was ordered not to have contact with Ms. Leedham. 2 . In early May 2019, Mr. Wall’s legal counsel wrote to Ms. Leedham’s legal counsel requesting that the parties establish a parenting

schedule on a priority basis. No agreements were reached. 3 . Mr. Wall filed a Notice of Motion for Interim Relief (Family Proceeding) on June 5, 2019. 4 . On July 10, 2019, Ms. Leedham filed a Parenting Statement. 5 . On July 17, 2019, a Court Conference was held. Counsel for the parties consented on a without prejudice basis to an “interim, interim, parenting arrangement”, whereby Mr. Wall would have parenting time every second weekend, and an evening during the alternate week, until a contested interim hearing could be scheduled. Mr. Wall was not present in Court with his legal counsel. 6 .

The matter was adjourned to September 30, 2019 for a half day contested interim hearing regarding interim parenting, and to a Judicial Settlement Conference on November 18, 2019 7 . Counsel for Ms. Leedham referenced that: “Ms. Leedham, following the court, met with counsel to address Mr. Wall’s parenting times on an interim basis until the hearing to be held on September 30 th , 2019.” A draft Interim Order circulated by Ms. Leedham’s counsel following the Court Conference, and subsequent negotiations, was not approved by Mr. Wall. 8 .

On September 30, 2019, evidence and submissions were heard at a contested Interim Hearing. 9 . On October 2, 2019, an interim decision was rendered orally. 10 . There is no record of an Interim Order being indexed at the Supreme Court Family Division further to my decision rendered October 2, 2019. It appears the parties were unable to agree to the form of Interim Order. 11 . I have reviewed the Voxlog record of my oral decision rendered October 2, 2019 and I note the Interim Order should include the following terms:

Preamble: - Both parents are jointly and equally entitled to interim parenting time with the children. - It is in the children’s best interests to have regular contact with and to share special occasions with both parents and their respective extended family and / or community. Both parties should have an opportunity to share their traditions with the children. - Mr. Wall’s proposal for parenting time was adopted by the Court. - The parties were given the option of renegotiating the parenting

schedule as necessary to accommodate either parent’s work schedule, while continuing to allow both parents to have meaningful parenting time with the children. If no agreement, Mr. Wall’s

schedule was to be adopted.

Parenting: - Mr. Wall’s suggested parenting plan was adopted by the Court. - The parties shall share the children’s belongings between households, including clothing, favourite toys, equipment / uniforms for extracurricular activities. - Ms. Leedham’s shall provide a photograph of the children’s health cards to Mr. Wall through legal counsel. - On an interim basis, the parents shall not have contact with one another in the children’s presence.

This provision is granted pending any change to the conditions imposed through the criminal court. - If the no contact order is varied: o the parties shall consider the use of a binder to communicate regarding the children’s needs, activities, appointments,

schedule in each home (bedtime routine etc), or other important information regarding the children. o The parties shall also consider arranging an agreed upon third party to be identified as a point of contact in the event there is a pressing issue to be dealt with regarding the children. - Regardless of any change in the no contact provision, neither party will attend at the children’s school when the children are scheduled to be in the other party’s care. - Neither party will speak negatively about the other party in the children’s presence. - Each party has a positive obligation to ensure that the children are not exposed to any other person who may speak negatively about either parent while in the presence of the children. - The parties were encouraged to set up a regular telephone check in time for the children with the other parent. - The parties were encouraged to consider counseling services for the children if there was an identified need.

Costs 12 . Costs are in the discretion of the Court. A successful party is generally entitled to a cost award, and a decision not to award costs must be for a “very good reason,” and be based on principle. Mr. Wall was successful overall. 13 . When determining costs, I must consider factors that increased the cost of litigation, and therefore the party’s entitlement to costs. 14 . I found Ms. Leedham and Mr. Wall should have taken more care to inform themselves about the children’s right to contact with both parents. Mr.

Wall brought the matter to Court, and the Court adopted his proposal for parenting after his efforts to negotiate / finalize an interim parenting agreement with Ms. Leedham outside of court failed. 15 . Mr. Wall argues the matter took more than a half day, and the Court may wish to rely on Tariff C (for a cost award between $1000.00 - $2000.00), but given there is “no amount involved”, it would be more appropriate to make a cost award “ that is a substantial

contribution”, suggesting $3,500.00 to the legal fees incurred by him. In Williamson, Justice Freeman found that a: “substantial contribution” not amounting to a complete indemnity must initially have been intended to mean more than fifty and less thanone hundred per cent of a lawyer’s reasonable bill for the services involved”. 16. Mr. Wall did not provide me with documentation regarding his legal fees, making it more difficult but not impossible for meto determine if I believed $3,500.00 would be a “substantial contribution” as contemplated in the case law. 17. In McPhee, Hill and MacLean v.

CUPE, 2008 NSCA 104. Justice Cromwell, writing for the unanimous court said atparagraph 76: [76] The reasons why costs should generally be awarded to the successful party were set out by Saunders, J. (as he then was) inLandymore v. Hardy (1992), (NS SC), 112 N.S.R. (2d) 410 (S.C.): [17] Costs are intended to reward success. Their deprivation will also penalize the unsuccessful litigant. One recognizes the linkbetween the rising cost of litigation and the adequacy of recoverable expenses. The parties who sue one another do so at their peril. Failure carries a cost. There are good reasons for this approach.

Doubtful actions may be postponed for a sober second thought. Frivolous actions should be abandoned. Settlement is encouraged. ...” [Emphasis added by Counsel] 18. Justice B. MacDonald of this court summarized the applicable principles when assessing costs in L. (N.D.) v. L. (M.S.), 2010NSSC 159 and more recently in Gagnon v. Gagnon, 2012 NSSC 137. She stated the following at paragraph 3 in L. (N.D.): Several principles emerge from the Rules and the case law. 1. Costs are in the discretion of the Court. 2. A successful party is generally entitled to a cost award. 3.

A decision not to award costs must be for a "very good reason" and be based on principle. 4. Deference to the best interests of a child, misconduct, oppressive and vexatious conduct, misuse of the court's time, unnecessarilyincreasing costs to a party, and failure to disclose information may justify a decision not to award costs to an otherwise successful partyor to reduce a cost award. 5. The amount of a party and party cost award should "represent a substantial contribution towards the parties' reasonable expenses inpresenting or defending the proceeding, but should not amount to a complete indemnity". 6.

The ability of a party to pay a cost award is a factor that can be considered; but as noted by Judge Dyer in M.C.Q. v. P.L.T. 2005NSFC 27: "Courts are also mindful that some litigants may consciously drag 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 who must "pay their own way". In such cases, fairness maydictate that the successful party's recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC65]." 7.

The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8. In the first analysis the "amount involved", required for the application of the tariffs and for the general consideration of quantum, isthe dollar amount awarded to the successful party at trial. If the trial did not involve a money amount other factors apply. The nature ofmatrimonial proceedings may complicate or preclude the determination of the "amount involved".

9. When determining the "amount involved" proves difficult or impossible the court may use a "rule of thumb" by equating each day oftrial to an amount of $20,000 in order to determine the "amount involved". 10. If the award determined by the tariff does not represent a substantial contribution towards the parties' reasonable expenses "it ispreferable not to increase artificially the "amount involved", but rather, to award a lump sum". However, departure from the tariff shouldbe infrequent. 11.

In determining what are "reasonable expenses", the fees billed to a successful party may be considered but this is only one factoramong many to be reviewed. 12. When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and also examinethe reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court. 19. Justice Jollimore in Moore v.

Moore, 2013 NSSC 281 at paragraph 14 addressed the applicability of Tariff “C” toapplications in the Family Division: [14] Initial guidance in determining costs is the tariff of costs and fees. The proceeding before me was a variation application. Formally, Tariff C applies to applications. As I said in MacLean v. Boylan, 2011 NSSC 406 at paragraph 30, applications in the FamilyDivision are, in practice, trials. Rule 77’s Tariffs have not changed from the Tariffs of Rule 63 of the Nova Scotia Civil Procedure Rules(1972).

Despite the distinction between an action and application created in our current Rules, the Tariffs have not been revised. Myview has not changed since I decided MacLean v. Boylan, 2011 NSSC 406: I don’t intend to give effect to the current Rules and theirincorporation of the pre-existing Tariffs where this routinely results in lesser awards of costs for the majority of proceedings in theFamily Division, such as corollary relief applications, variation applications and applications under the Maintenance and Custody Act orthe Matrimonial Property Act.

In these situations I intend to apply Tariff A as has been done by others in the Family Division: JusticeGass’ decision in Hopkie, 2010 NSSC 345 and Justice MacDonald in Kozma, 2013 NSSC 20. 20. In Armoyan v. Armoyan, 2013 NSCA 136 the court of appeal stated at paragraphs [12] Rule 77.06 says that, unless ordered otherwise, party and party costs are quantified according to the tariffs, reproduced in Rule77. These are costs of a trial or an application in court under Tariff A, a motion or application in chambers under Tariff C (see also Rule77.05), and an appeal under Tariff B.

Tariff B prescribes appeal costs of 40% trial costs “unless a different amount is set by the NovaScotia Court of Appeal”. [13] By Rule 77.07(1), the court has discretion to raise or lower the tariff costs, applying factors such as those listed in Rule77.07(2). These factors include an unaccepted written settlement offer, whether or not the offer was made formally under Rule 10, andthe parties’ conduct that affected the speed or expense of the proceeding. [14] Rule 77.08 permits the court to award lump sum costs.

The Rule does not specify the circumstances when the Court shoulddepart from tariff costs for a lump sum. Tariff or Lump Sum? [15] The tariffs are the norm, and there must be a reason to consider a lump sum. [16] The basic principle is that a costs award should afford substantial contribution to the party’s reasonable fees and expenses. InWilliamson, while discussing the 1989 tariffs, Justice Freeman adopted Justice Saunders’ statement from Landymore v.

Hardy (1992), (NS SC), 112 N.S.R. (2d) 410: The underlying principle by which costs ought to be measured was expressed by the Statutory Costs and Fees Committee in these words: “… the recovery of costs should represent a substantial contribution towards the parties’ reasonable expenses in presenting or defendingthe proceeding, but should not amount to a complete indemnity.” 21. Justice Freeman continued: In my view a reasonable

interpretation of this language suggests that a “substantial contribution” not amounting to a complete indemnitymust initially have been intended to mean more than fifty and less than one hundred per cent of a lawyer’s reasonable bill for theservices involved. A range for party and party costs between two-thirds and three-quarters of solicitor and client costs, objectivelydetermined, might have seemed reasonable.

There has been considerable slippage since 1989 because of escalating legal fees, and costsawards representing a much lower proportion of legal fees actually paid appear to have become standard and accepted practice in casesnot involving misconduct or other special circumstances. [17] The tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventionalcase whose circumstances conform generally to the parameters assumed by the tariffs.

The remaining discretion is a mechanism forconstructive adjustment that tailors the tariffs’ model to the features of the case. [18] But some cases bear no resemblance to the tariffs’ assumptions. A proceeding begun nominally as a chambers motion,signalling Tariff C, may assume trial functions, contemplated by Tariff A. A Tariff A case may have no “amount involved”, otherimportant issues being at stake. Sometimes the effort is 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 workload, that is far disproportionate to the court time, by which costs are assessed under provisions of the Tariffs. Conversely, a substantial sum may turn on a concisely presented issue. There may be a rejected settlement offer, formal or informal, that would have saved everyone significant expense. These are just examples.

Some cases may combine several such factors to the degree that the reflexive use of the tariffs may inject a heavy dose of the very subjectivity – e.g. to define an artificial “amount involved” as Justice Freeman noted in Williamson – that the tariffs aim to avoid. When this subjectivity exceeds a critical level, the tariff may be more distracting than useful. Then it is more realistic to circumvent the tariffs, and channel that discretion directly to the principled calculation of a lump sum.

A principled calculation should turn on the objective criteria that are accepted by the Rules or case law. [19] In my view, this is such a case for a lump sum award. I say this for the following reasons. [20] Justices of the Family Division have stated that trial-like hearings in matrimonial matters are more appropriate for Tariff A than Tariff C: Hopkie v. Hopkie , 2010 NSSC 345 , para 7 , per Gass, J.; MacLean v. Boylan , 2011 NSSC 406 , paras 29-30 , per Jollimore, J.; Kozma v. Kozma , 2013 NSSC 20 , para 2 , per MacDonald, J.; Robinson v. Robinson , 2009 NSSC 409 , para 10 , per Campbell, J.. 22 .

There was no specific monetary amount involved. 23 . I have considered what I do know about the parties’ financial circumstances, the parties’ conduct prior to the Application to the Court and leading up to the Interim Hearing in September 2019. 24 . Mr. Wall expended effort and expense trying to negotiate a parenting arrangement prior to filing his motion with the Court. Thereafter Mr. Wall incurred additional legal expenses for his legal counsel to attend a court conference, to further negotiate with Ms.

Wall’s legal counsel, to prepare and attend a contested interim motion, and to attend court for an oral decision. 25 . On this interim motion, I find Mr. Wall is entitled to costs for more than a ½ day but less than a day. 26 . I order Ms. Leedham to pay Mr. Wall costs of $2000.00 pursuant to Tariff C. The full amount shall be paid by Ms. Leedham to Mr. Wall by January 1, 2021. Directions: Ms. Nicholson shall prepare the Order for Costs. I also direct Ms. Nicholson to file a draft order containing the provisions I have outlined in paragraph 11. Cindy G. Cormier, J.S.C.(F.D.)