Oliver v. Oliver, 2022 NSSC 349

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Oliver v. Oliver , 2022 NSSC 349 Date: 20220824 Docket: SKD-119159 1204-007147 Registry: Kentville Between: Susan Pearl Oliver Petitioner v. Eugene Carroll Oliver Respondent Judge: The Honourable Justice Jean M.

Dewolfe Heard: January 24 th , 2022, January 25 th , 2022, February 8 th , 2022, February 9 th , 2022 and March 18 th , 2022, in Kentville, Nova Scotia Written Release: August 24, 2022 – Decision on Costs Counsel: Lynn Connors, Q.C. for the Petitioner, Susan Pearl Oliver Hugh Robichaud for the Respondent, Eugene Carroll Oliver By the Court: COSTS [ 1 ] This is an application by the Petitioner, Susan Oliver, for her costs in relation to a divorce/corollary relief/property division hearing which occurred in January, February, and March 2022. [ 2 ] The Court gave a written decision on May 12, 2022 ( Oliver v.

Oliver , 2022 NSSC 131 which is under appeal in part). A Divorce Order and Corollary Relief Order were issued on June 21, 2022. [ 3 ] Ms. Oliver was the more successful party. Ms. Oliver was entirely successful in characterizing a number of proposed assets/deductions as matrimonial in the face of Mr.

Oliver’s attempts to characterize them to his advantage: • Quonset Hut ($75,000) – sought to deduct • Vehicles: Truck and 4 x 4 gifted to his son post separation ($43,500 and $14,500) – sought to exclude • Her US Account ($20,000) - sought to include • His cashed in TFSA ($127,446) – sought to exclude • Another truck ($3,760)- sought to exclude • Snowmobiles, etc.; not appraised ($5,000) – not appraised or included • Mr. Oliver’s account balances at separation ($55,000 and $30,000) - not included • $25,000 “cash” allegedly removed from the home by Ms. Oliver – sought to include • Hillsburn property in Ms.

Oliver’s name (gift) ($125,000) – sought to include • Total: $524,206. [ 4 ] In addition, Ms. Oliver was successful in obtaining retroactive spousal support ($35,134). The Court accepted Ms. Oliver’s request that the cottage be sold; and accepted her proposed value for the Mustang. The Court also approved her request to hold and use

the bank drafts purchased with funds removed from bank accounts by Mr. Oliver post separation to pay towards her share of the assets. [ 5 ] Ms. Oliver was unsuccessful in having her post-separation debts included and TFSA excluded ($60,000) and having the full Ryash PP account included ($117,360). [ 6 ] Ms. Oliver was also unsuccessful in her application to receive 50% of the value of Ryash Enterprises Limited (“Ryash”). Mr. Oliver’s position had been that she should not receive any portion of the business.

She was awarded 20%, which is of significant value ($340,000). [ 7 ] The Court has received and reviewed submissions on costs from both counsel (July 13, 2022 Ms. Oliver; August 4, 2022 Mr. Oliver). [ 8 ] At that time, Ms. Oliver’s legal fees totaled $64,115, plus HST ($9,793) plus disbursements ($1,750.90). Ms.

Oliver’s counsel takes the position that using Tariff A, the amount involved is $750,001-$1,000,000: 50% of matrimonial assets $474,444.33 20% of Ryash awarded $340,000.00 Retroactive spousal support awarded $35,134.00 $861,576.33 [ 9 ] She seeks Scale 3 costs of $80,930 plus $9,000 for 4.5 days of trial, plus HST and disbursements. [ 10 ] Mr. Oliver’s counsel takes the position that the “amount involved” is $500,001 to $750,000 without providing particulars.

He proposes Scale 1 costs of $37,313, plus $6,000 for 3 trial days (2 full days, 2 half days) for a total of $43,313, plus HST and disbursements. [ 11 ] The Court accepts that the amount involved is $861,576.33. [ 12 ] The Court record shows 3.5 days of trial/submissions: January 24, 2022 full day; January 25, 2022 half day; February 8, 2022 full day; February 9, 2022 half day, March 18, 2022 half day. [ 13 ] Rule 70.07 lists the factors that should be considered in any costs award.

This Rule incorporates the tariffs set out in the Cost and Fees Act. [ 14 ] Rule 77.06 (1) provides: 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. [ 15 ] Further, Rule 77.07 (2) gives the Court discretion to increase or decrease the tariff costs, referencing the following factors which are relevant in this case: 77.07

(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: (

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

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

b) Offers [ 16 ] In this case, Ms. Oliver made two written offers to settle. [ 17 ] On January 17, 2022, Ms. Oliver proposed in writing a payment representing 35% of the value of Ryash Enterprises Limited, with a total payment of approximately $812,124. On February 3, 2022 this was reduced to approximately $800,000. [ 18 ] Mr. Oliver never made a written offer, but verbally offered a $400,000 payment on February 3, 2022. [ 19 ] Ms. Oliver’s offer of payment of January 17, 2022 ($812,124) is lower than that which she actually received ($861,000),

although she received significantly less than the 35% of Ryash which she proposed. (

e) Conduct [ 20 ] Mr. Oliver’s lack of disclosure and cooperation significantly increased Ms. Oliver’s legal costs and increased the length of the hearing by at least 3 half days. [ 21 ] He delayed crucial disclosure until immediately before trial. He refused to consent to Ms. Oliver’s lawyer having access to his bank records, necessitating numerous subpoenas and hasty review and analysis. He removed virtually all of his/Ryash’s funds and held them as bank drafts, making them inaccessible for payment of his ongoing interim support obligation.

He made numerous unsupported claims in an attempt to exclude assets from division. These factors support an increased costs award. [ 22 ] The basic principle is that a costs award should afford a “substantial contribution to the party’s reasonable fees and expenses” and do justice between the parties. [ 23 ] The Court finds that this is not an appropriate case for solicitor/client costs. The bar for such costs is a high one; they are usually awarded in the case of trial misconduct. Armoyan v Armoyan , 2013 NSCA 136 . [ 24 ] Ms. Oliver was not wholly successful.

She should bear responsibility for a portion of her legal fees. [ 25 ] The Court finds that using the Tariffs would not be appropriate in this case as it would provide Ms. Oliver with more than the legal fees she incurred.

The fact that she is/will be incurring legal fees to bring effect to the Court’s decision does not justify an award of excess costs. [ 26 ] Rule 77.08 provides for lump sum costs in cases where a tariff is not appropriate. [ 27 ] The Court of Appeal summarized the law governing costs in family proceedings in Armoyan v Armoyan , 2013 NSCA 136 where Fichaud, J. stated at para 10-14: [10] The Court’s overall mandate, under Rule 77.02(1), is to “do justice between the parties”. [11] Solicitor and client costs are engaged in “rare and exceptional circumstances as when misconduct has occurred in the conduct of or related to the litigation”.

Williamson v. Williams, 1998 NSCA 195 , [1998] N.S.J. 498, per Freeman, J.A.. This Court rejected most of Mr. Armoyan’s submissions on the merits. But there has been no litigation misconduct in the Nova Scotia proceedings that would support an award of solicitor and client costs. So these are party and party costs. [12] Rule 77.06 says that, unless ordered otherwise, party and party costs are quantified according to the tariffs, reproduced in Rule 77.

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 Rule 77.05), and an appeal under Tariff B. Tariff B prescribes appeal costs of 40% trial costs “unless a different amount is set by the Nova Scotia 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 Rule 77.07(2).

These factors include an unaccepted written settlement offer, whether or not the offer was made formally under Rule 10, and the 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 should depart from tariff costs for a lump sum. [ 28 ] The Court is satisfied that $55,000 costs plus disbursements and HST is a significant contribution to Ms. Oliver’s legal fees.

It achieves the appropriate balance which the Rules seek to achieve, and effects justice. [ 29 ] I designate $10,000 inclusive of disbursements as the portion of these costs attributable to retroactive spousal support, which will be enforceable through N.S. Maintenance Enforcement Program. Dewolfe, J.