Annand v. Annand, 2022 NSSC 252

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Annand v. Annand , 2022 NSSC 252 Date: 2022-09-06 Docket: SFH No. 1201-072061 Registry: Halifax Between: Krystle Annand Petitioner v. Jason Annand Respondent Judge: The Honourable Justice Theresa Forgeron Costs Submissions: April 19 and May 26, 2022 Decision: September 6, 2022 Counsel: Krystle Annand, self-represented Jason Annand, self-represented By the Court: Introduction [ 1 ] Krystle Annand seeks costs from Jason Annand as a result of my decision reported as Annand v Annand , 2022 NSSC 70 .

She states that she was the more successful litigant and that she incurred over $50,000 in legal fees before she became self-represented. She claims that Mr. Annand was overly litigious and unreasonable, especially because of his repeated failure to produce relevant financial information. [ 2 ] In contrast, Mr. Annand states that each party should bear their own costs. He relies on several factors to support his position including that the decision resulted in mixed success, and that Ms. Annand refused all reasonable efforts to settle the issues because of her animosity towards him.

Issues [ 3 ] In this decision, I will decide the following issues: • What are the positions of the parties? • Who was the successful party? • What is the appropriate costs award? Analysis [ 4 ] What are the positions of the parties? [ 5 ] Ms. Annand seeks costs for reasons which include the following: • She was the more successful party.

• Throughout the proceeding, she made concerted and good faith efforts to settle all outstanding issues on both an interim and final basis. Mr. Annand consistently refused her good faith efforts. For example, her counsel’s letter of January 22, 2019 offered to settle the interim support issues for less than was ultimately decided by Justice Chiasson during the contested interim hearing. Additional settlement letters followed which provided other settlement options which were likewise refused. • Mr. Annand was not forthcoming with disclosure despite costs awards, court directions, and a production order.

She incurred unnecessary and substantial legal fees, in part, because of Mr. Annand’s failure to disclose in a timely fashion, including additional court appearances which could have been avoided had Mr. Annand not been delinquent with his disclosure. • She had to retain an accountant to determine correct amounts outstanding to CRA because of the many errors contained in Mr. Annand’s tax filings. • Mr. Annand was unnecessarily litigious. For example, he filed two motions to vary interim support which motions were dismissed.

At other times, he made last minute adjournment requests which led to increased legal fees. In addition, some court conferences were rendered meaningless because Mr. Annand failed to provide instructions to his lawyer, or refused to disclose all that was requested and court ordered. • She ultimately had to represent herself in the divorce trial because she could no longer afford counsel. She incurred $53,416.57 in legal fees before the divorce trial even began. Some of these fees could have been avoided had Mr.

Annand cooperated with disclosure and focused his attention on the outstanding issues. [ 6 ] In contrast, Mr. Annand states that each party should bear their own costs. In support of his position, Mr. Annand urged me to consider the following: • He repeatedly attempted to resolve all the issues in an amicable and reasonable fashion, but Ms. Annand would never agree. For example, she would often renege on her own settlement offers after his lawyer verbally accepted them by noting “if you will pay that you will pay more.” On other occasions, Ms.

Annand said that her goal was to humiliate and ruin him through a drawn-out court battle. Further, Ms. Annand refused counselling so they could meet the children’s needs and finalize the divorce without the extra financial burden of the court and lawyers. • Ms. Annand was unnecessarily litigious. She kept asking for unreasonable amounts of disclosure which he was not able to obtain. He provided over 8,000 pages of disclosure which he paid his lawyer to organize. His lawyer stopped representing him because he couldn’t pay his own legal bill because of Ms.

Annand’s excessive demands. • Despite being out thousands of dollars in the short time that he was able to retain a lawyer, he is not requesting costs because both parties should be responsible for their own legal obligations. • He is not in a financial position to pay costs. He is struggling to make ends meet because of the significant support payments and the heavy debt he is required to pay.

The family needs closure so they can move forward with their lives. [ 7 ] Who was the successful party? [ 8 ] Although each party achieved some level of success on the multiple issues before the court during the divorce trial, Ms. Annand was nevertheless the more successful party. I reach this conclusion from the following analysis of my divorce decision: • Ms. Annand was granted primary care of the children in keeping with the parenting position espoused by her. She was the successful party on the parenting issues. • The corporate bank account with a value of $4,069 and the $15,185 cash surrender value of Mr.

Annand’s life insurance were included as matrimonial property, while the shareholder loan of $11,508 was not. There was mixed success on this issue. Ms. Annand was successful in including the bank balance and the pre-marriage portion of the insurance cash surrender value, while Mr. Annand was successful in excluding the shareholder loan. • Mr. Annand was partially successful in proving that most of his personal and corporate income tax debt and payroll remittance debt were divisible family debt, although I did reduce the debt by $10,000 for reasons stated at para 53 of the divorce decision. Ms.

Annand was, however, successful in excluding the principal and interest payments that Mr. Annand made on the various debt after separation. • There was mixed success on the equalization calculation which was computed after determining the values of the various assets, together with the debt balances. • Mr. Annand was successful in the determination of his income. Neither party was successful in the determination of Ms. Annand’s income. • The child support decision resulted in mixed success. • Ms. Annand was the more successful party on the spousal support issue.

I ordered spousal support of $1,608 payable for eight years, although the amount ordered was less than what Ms. Annand sought. • There was mixed success on the retroactive support issue. I awarded retroactive support of $12,500, less a $2,705 credit for childcare which was not being incurred during the COVID lockdown. [ 9 ] What is the appropriate costs award? [ 10 ] Ms. Annand is entitled to costs. In reaching my decision, I employ the provisions of Rule 77 and the principles stated in

Armoyan v Armoyan, 2013 NSCA 136 . I note that a lump sum award is appropriate because it is not possible to calculate an amount involved. I award $10,000 in costs to Ms. Annand as such will do justice as between the parties. My decision is based on the following factors: • Ms. Annand was the more successful party. • The divorce was a lengthy and protracted proceeding. The parties appeared for many conferences and motions. In addition, the divorce was heard over four days - October 19, 20, and 2021; December 8, 2021; and February 1, 2022. • The proceeding was complex as it involved many issues.

The issues were important to the parties. Both parties were disorganized and unfocused during the divorce trial. • Mr. Annand caused many unnecessary delays because of his failure to produce the materials ordered by the court. The failure to provide timely and meaningful disclosure forestalled settlement, and resulted in a proliferation of court appearances before various judges. • Mr.

Annand attempted to resile from settlements previously entered, such as agreements on parenting issues, valuations, asset and debt division, and entitlement to spousal support. • Both parties were represented for a portion of the hearing but were self-represented by the time of trial. Although self-represented litigants are entitled to costs, such are not calculated in the same manner as parties represented by lawyers. • The settlement offers did not mirror my decision and thus have no bearing on the amount of the costs award. • Mr. Annand’s financial situation does not impact Ms. Annand’s costs entitlement. Ms.

Annand, the more successful party, also finds herself in difficult financial circumstances as she is the primary care provider who is just returning to the work force. Further, if Ms. Annand wanted insulation against costs based on impecuniosity, he should have filed a motion pursuant to Rule 77.04 at the outset of the proceeding. Conclusion [ 11 ] Mr. Annand must pay costs to Ms. Annand of $10,000 which is to be paid from the trust balance being held for Mr. Annand from his share of the matrimonial home sale proceeds, with any balance to be paid by Mr. Annand personally no later than September 30, 2022.

Once the costs award is paid, any remaining trust funds being held on Mr. Annand’s behalf can be released to him. [ 12 ] The court will draft the order. Forgeron, J.