XD v. SZ, 2022 NSSC 260

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: XD v. SZ , 2022 NSSC 260 Date: 20220915 Docket: Sydney No. 115908 Registry: Sydney Between: XD Applicant v. SZ Respondent Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: June 16 & 17, 2022, in Sydney, Nova Scotia Written Release: September 15, 2022 Counsel: Pavel Boubnov for the XD Courtney Somerton for the SZ By the Court: [ 1 ] This is a costs decision following a contested hearing on parenting arrangements and mobility. [ 2 ] I rendered a decision on July 22, 2022 in which I denied ZD's application to move the children to Toronto.

I granted shared parenting in CBRM instead. [ 3 ] SZ seeks costs arising from the two-day hearing. He filed his costs submissions on August 5, 2022. ZD filed her response on September 7, 2022. [ 4 ] Nova Scotia Civil Procedure Rule 77 governs costs in family matters. It states: 77.02 General discretion (party and party costs)

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties. . . . 77.06 Assessment of costs under tariff at end of proceeding

(1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act , a copy of which is reproduced at the end of this Rule 77. . . . 77.07 Increasing or decreasing tariff amount

(1) A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs.

(2) The following are examples of factors that may be relevant on a request that tariff costs be increased or decreased after the trial of an action, or hearing of an application: (

a) the amount claimed in relation to the amount recovered; (

b) a written offer of settlement, whether made formally under Rule 10 - Settlement or otherwise, that is not accepted; (

c) an offer of contribution;

(

d) a payment into court; (

e) conduct of a party affecting the speed or expense of the proceeding; (

f) a step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily; (

g) a step in the proceeding a party was required to take because the other party unreasonably withheld consent; (

h) a failure to admit something that should have been admitted. [ 5 ] In Armoyan v. Armoyan , 2013 NSCA 136 , Fichaud, J.A., reviewed the principles applicable to costs in family litigation. Forgeron, J. summarized those principles in Cameron v.

Cameron , 2014 NSSC 325 , as follows: • the court’s overall mandate in awarding costs is to “do justice between the parties”; • party and party costs are the norm and are to be quantified according the Tariffs found in the Civil Procedure Rules ; • costs are in the discretion of the court; • the amount set out in those Tariffs may be adjusted in accordance with certain factors, including written settlement offers which were not accepted, the conduct of the parties insofar as it affects the speed or expense of the proceeding, and the positions taken by the parties; • Civil Procedure Rule 77 permits the court to award lump sum costs apart from Tariff costs in certain circumstances, with the basic principle being that cost awards reflect a substantial contribution to the parties’ reasonable fees and expenses. [ 6 ] In J.E.W. v W.E.D. , 2019 NSSC 276 , Justice Forgeron directed the mother to pays costs to the father of $4,000 after a one day hearing where her mobility application was dismissed.

The facts of that case are similar to this one: • The father was almost entirely successful in that the relocation application was refused, and a joint and shared parenting arrangement was implemented. • The mother did not act reasonably throughout.

In particular, the "mother minimized the father's involvement with the children, and in some respects overstated her own". • The father "was not a disinterested and passive father who neglected his parenting responsibilities" as the mother alleged. • The mother's false allegations about the father fueled the parenting dispute and made settlement prospects difficult. [ 7 ] As O’Neil, A.C.J. noted in Smith v Harnish , 2022 NSSC 218 : 8 Arriving at a costs assessment in family matters is difficult given the often-mixed outcome and the need to consider the impact of an onerous costs award on the families; and children in particular.

The need for the court to exercise its discretion and to move away from a strict application of the tariffs is often present. [ 8 ] The mother in Smith (supra) was ordered to pay costs of $5,000 inclusive of disbursements and HST.

Her argument that parents should not be deterred from advancing bone fide claims in a parenting dispute by facing a significant costs award was not accepted in that case, though it has been accepted in others cited by ZD in her submissions. [ 9 ] In particular, ZD relies on D.L.P. v S.J. , 2010 NSSC 107 , in which the court noted that it has discretion to dismiss a claim for costs, where there are principled reasons to do so. [ 10 ] ZD says that there are principled reasons to deny costs in this case.

Firstly, she argues that she had a “subjective” belief that a move to Toronto was in the children’s best interests.

Secondly, she argues that now, with the children living with their father in CBRM (she opted to move without them after my decision was released) she will incur “significant travel costs” to exercise parenting time with the children. [ 11 ] SZ responds to ZD’s financial impecuniosity argument as follows: • ZD did not apply for relief under Rule 77.04; • She had the financial ability to purchase a townhouse in Richmond Hill; • She is gainfully employed; • She paid the fine imposed after the contempt hearing “with no difficulty”; • SZ has the children in his primary care now; • This was a two day hearing;

• The hearing capped off a “very lengthy expensive court process”; • SZ retained private counsel throughout; • He incurred legal fees with his current counsel of approximately $19,000; • ZD is not immune from a costs award just because she was represented by Nova Scotia Legal Aid counsel. [ 12 ] I’ve considered Civil Procedure Rule 77, the cases cited by counsel, and the principles outlined in Armoyan (supra) in exercising my discretion to award costs to SZ.

He was the more successful party so he’s presumptively entitled to an award of costs. [ 13 ] I have considered whether I should exercise my discretion to refuse an award of costs, but I decline to do so. ZD did not have a bona fide belief that the move was in the best interests of the children. Instead, the move was made to advance her career and social connections, as well as her agenda of restricting SZ’s contact with the children.

Further, I am not satisfied that an award of costs will impede her ability to exercise parenting time with the children, especially if it is paid over time. [ 14 ] There is no principled reason to deny costs to SZ. I agree with Jollimore, J’s statement in Barkhouse-Pace v. Pace , 2017 NSSC 350 : “Representation by Legal Aid counsel does not immunize a party against an order for costs. This can only be done by an order granted on a motion under Rule 77.04.” [ 15 ] No offers to settle have been brought to my attention, so that doesn’t factor into my decision.

This case does not lend itself to the Tariffs, as there’s no amount involved. I find instead that it’s appropriate to award costs in a lump sum under Rule 77.08. [ 16 ] I direct ZD to pay costs to SZ in the amount of $7,500, which reflects not only his success at the hearing, but also in the contempt proceeding. These costs are payable at the monthly rate of $250.00 until paid in full, and are enforceable through the Director of Maintenance Enforcement. [ 17 ] This sum will provide SZ with partial indemnity of his legal fees, not substantial indemnity.

I have balanced that principle with the need to ensure that a costs award does not impede ZD’s ability to exercise parenting time with the children. I’m satisfied that it does justice between the parties with all of these factors in mind. [ 18 ] I would ask that SZ’s counsel prepare the order. MacLeod-Archer, J.