C.B. v. N.I., 2023 NSSC 136

SUPREME COURT OF Nova Scotia Citation: C.B. v. N.I. , 2023 NSSC 136 Date: 20230425 Docket: SFHPSA , No. 107325 Registry: Halifax Between: C.B. Applicant v. N.I. Respondent ENDORSEMENT ON COSTS Judge: The Honourable Justice Cindy G. Cormier Written Submissions: October 24, 2022 – Applicant October 14, 2022 – Respondent Counsel: William Leahey, for the Applicant Kerri-Anne Robson, for the Respondent Initial Submissions Counsel for the mother, C.B., included: Brendan Martin; Jessica Chapman; Bryen Mooney; and William Leahey.

Costs submissions were received from the mother’s counsel on October 24, 2022, followed by a Solicitor’s affidavit received on October 27, 2022. Counsel for the father, N.I., included: Kelsey Hudson; and Kerri-Anne Robson. Costs submissions were received from the father’s counsel on October 14, 2022. Further submissions On November 3, 2022 , correspondence was received from the mother’s counsel enclosing a draft Order and requesting the Court’s assistance with finalizing certain terms in the Order.

The father’s counsel filed correspondence on November 8, 2022 , objecting to certain terms in the draft Order and seeking clarification of others. On November 24, 2022 , further correspondence was received from the mother’s counsel raising the issue of the $25,000, a portion of the father’s half share of the proceeds of the sale of the parties’ joint home held in trust. The mother’s counsel claimed the funds were due and owing pursuant to my decision. My decision does not state that those funds must be released by the father to the mother.

Counsel suggested the mother may seek further costs in relation to efforts to finalize the Order. None were subsequently submitted. On November 29, 2022 , the parties appeared before me. They confirmed they had reached an agreement regarding the release of the $25,000 to the mother and an agreement to credit $2,157.24 to the father. They also advised that the father had agreed to pay child support based on an adjusted income and to pay $200 per month toward arrears accumulated up to February 2022. An “Order Following Hearing” was filed with the Court on January 3, 2023 and was issued on January 16, 2023.

By the Court: 1 Introduction [ 1 ] This decision concerns the mother’s, C.B., request for costs from the father, N.I., following my decision reported at C.B . v .

N.I ., 2022 NSSC 290 , with an advanced copy provided to the parties on September 1, 2022. [ 2 ] The mother seeks costs from the father in the amount of $70,000.00 plus allowable disbursements. The mother argued that costs of $47,000.00 pursuant to Tariff A, at scale 2, with an “amount involved” of $80,000.00, adding $2000.00 for each day of the four day trial, would not come close to providing a “substantial but incomplete indemnity” for the mother’s legal costs.

The mother claimed that her actual legal fees, including those payable to previous counsel from BOYNECLARKE were $103,324.37 not including disbursements. Stating in her brief on costs: “This includes legal fees and disbursements from both present and Ms. Barnes previous counsel (BOYNECLARKE).” [ 3 ] The father, suggested that “judicial intervention was required to determine his bona fide claim” that the parenting arrangements needed to be addressed.

He argued that the Court should not order costs given the circumstances. [ 4 ] In addition to filing cost submissions on October 14, 2022 and October 24, 2022 and a Solicitor’s affidavit on October 27, 2022, the parties wrote to the Court seeking clarification with respect to several issues to be included in an Order: 1. decision making, which was not specifically addressed in the written decision; 2. the issue of special or extraordinary expenses: “non-section seven expenses previously paid by the father.” The decision allowed the father to provide an accounting of those expenses following receipt of the written decision.

He was seeking reimbursement of $2,157.24 against the award of retroactive child support; 3. the appointment of a co-parenting counselor for the parties and counselors for their son and daughter following receipt of the decision; 4. The implementation of Veith House visitation for the father and the parties’ son and daughter after receipt of the decision. 5. The father sought an Administrative Recalculation Order.

The Court and the parties later received a letter suggesting the child support provision the parties had negotiated was interim in nature and could not be enforced through the Administrative Recalculation Program. [ 5 ] On November 29, 2022, the parties appeared before me to discuss the outstanding issues listed above at paragraph four (4): • After discussions about my decision as it relates to custody generally, I invited submissions from counsel on the issue. Counsel did not wish to make submissions.

They advised they were content with an order specifying joint custody would continue with a provision that both parties should follow any professional recommendations. • Per my decision rendered September 1, 2022, I clarified that counseling for the parties’ daughter need not start before Veith House in-person contact between the parties’ daughter and the father was put in place, and that in-person parenting time was preferred to virtual parenting time. • Counsel suggested they could work out any other outstanding details among themselves. An Order was filed on January 3, 2023.

No further costs submissions were received. 2 Issue [ 6 ] What is the appropriate award of costs? 3 Background information [ 7 ] The father and the mother separated in May 2017. They have two children together: their son, R and their daughter, E. [ 8 ] In or around September 2017, given the parties’ shared parenting arrangement, the father took the position that he had been paying “double” the expected amount of child support since the parties had separated in May 2017. [ 9 ] In September 2017, the mother requested that the children live mostly with her.

The father did not agree to change the shared parenting arrangement. [ 10 ] On October 17, 2017, the mother initiated a Parenting and Support Act application, requesting the court address: custody and parenting arrangements; prospective child support, table amount of child support retroactive to May 2017; and child support for special or extraordinary expenses. She did not plead costs. [ 11 ] On February 2, 2018, the father filed a Response. He did not plead costs.

He sought to address: custody and parenting arrangements; parenting time; child support: table and special or extraordinary expenses; and pursuant to the Partition Act and the law of equity, a division of the equity in the parties’ home. [ 12 ] On September 12, 2018, the mother contacted the Minister of Community Services - Child Protection to express concern that the father had applied for half of the child tax benefit. She advised that she now owed the government $7,800.00. The mother was suggesting the father was not entitled to half of the child tax benefit.

4 Custody [ 13 ] At a case conference held following receipt of my decision and at the request of the parties, on November 29, 2022, I clarified that although the mother had requested sole custody of the children, that based on the totality of the circumstances I would lean toward joint custody with the parties agreeing to follow professional advice. I invited counsel to make further submissions on the issue of custody, but they declined to do so. The parties agreed to an order for joint custody with both parties agreeing to follow professional advice if there was a disagreement.

The father was successful as the mother had been seeking sole custody. 5 Parenting [ 14 ] In my decision I found it would be least harmful for the parties’ son to remain in the mother’s primary care. However, I explained that I agreed with the parties’ son’s assessor who had expressed that it would be important for the parties’ son not to terminate his relationship with his father. I found it was in the parties’ son’s best interests to reconnect with his father through Veith House.

The father’s request for primary care was not reasonable under the circumstances and the mother was the successful litigant. [ 15 ] I was not prepared to place the parties’ daugther in the father’s primary care, and I also found, based on her reluctance to see her father and other evidence, that it was not in the parties’ daugther’s best interests to be placed in a shared parenting arrangement with both parties. [ 16 ] I found it was in the parties’ daughter’s best interest for her to recommence contact with her father (which was interrupted in June 2020) through Veith House.

My decision did not include any pre-requisites needing to be in place before the father’s Veith House parenting could begin.

At the case conference, I clarified that in-person parenting time is mostly always preferred and I did not think this case was different. [ 17 ] In my written decision I had directed that the mother not participate in any therapy that the parties’ daughter participated in, “unless their daughter’s therapist specifically found it was necessary to include the mother.” [ 18 ] I further directed that the mother not be present for the parties’ daughter’s access with her father, whether by videocall or in person (again with later clarification that it was preferred that the daughter’s time with her father be in person).

Having the mother in the background during any virtual parenting time between the daugther and the father was a situation I was trying to avoid. [ 19 ] In my decision rendered September 1, 2022, I determined that if the parties’ daughter attended parenting time scheduled with the father at Veith House, then a review of the daughter’s supervised parenting time with the father may be scheduled to coincide with the end of the parenting visits scheduled at Veith House, after six months as court time permits. [ 20 ] Further, I found that if the daughter failed to attend the access visits at Veith House, the matter of her contact with her father may be reviewed after three months (after my decision was received September 1, 2022), as court time permits.

I found both parties were at fault for the ongoing conflict between them. [ 21 ] Despite my misgivings about the mother’s claim that the children refused to see the father and that was why she was seeking sole custody and primary care, I felt it was the father’s extreme reactions to the conflict between the parties and his parenting style which caused the most damage to his relationship with the children, and in particular, his relationship with his son.

Had the father been able to contain his reactions to the mother’s at times provocative behaviour and been able to respond adequately to the children’s emotional needs (in particular his son’s needs), it is possible the children would not have aligned with their mother. [ 22 ] Unfortunately, I found the father could not contain himself, and the children had aligned with their mother. The mother was able to prove to me that the children were aligned with her not only due to her behaviour, but also due to the father’s volatile responses to her behaviour and dictatorial parenting style.

The mother was successful. [ 23 ] In my written decision, I recognized that the structure for in-person visits available through Veith House would not always be available to the parties. I found both parties would require professional guidance to be able to co-parent their children together, and I directed them to participate in co-parenting counseling. As late as November 29, 2022, co-parenting counseling was not yet in place. [ 24 ] I granted an order prohibiting either party from posting any further information about this matter or about the other party on social media.

I further granted an order prohibiting either party from facilitating the dissemination of information about the other party by any means.

Obviously parents should not need to be told not to speak negatively about each other on social media. 6 Child Support [ 25 ] As noted above, in September 2018, the mother contacted the Minister of Community Services - Child Protection to express concern that the father had applied for half of the child tax benefit and she owed the government $7,800.00, suggesting the father was not entitled to half of the child tax benefit. • I found the parties had a shared parenting arrangement from May 2017 up to August 2020.

The mother’s complaint about the father applying for half the child tax benefit for that period was without merit. [ 26 ] The father argued that the Interim Consent Order (Support) issued June 18, 2019, which awarded C.B. child support in the amount of $220.40 per month (the set-off) in accordance with the shared parenting arrangement, and an equal sharing of child-care costs and extracurricular costs beginning June 1, 2019, should stand until at least June 2020.

• Despite the mother’s arguments that she’d had care of the children more than 60% of the time during certain periods, I found the parties had a shared parenting arrangement in 2017, 2018, 2019, and up to August 2020. In keeping with the parties’ agreement reached in June 2019, I held that the set-off Guideline amount applied from May 2017 up to August 2020. The father was successful. [ 27 ] The father also argued that there was no provision in the Interim Consent Order (Support) with respect to retroactively varying child support, and therefore I should not retroactively recalculate child support.

Based on his argument, he asked that this Court consider the issue of child support as of June 2020, “the time at which there was a material change in de facto parenting arrangement following the Interim Consent Order (Support) in June 2019.” • Although as noted above, I upheld the parties’ agreement reached in June 2019 to use the set-off Guideline amount up to August 2020, I did retroactively calculate child support back to May 2017.

There was mixed success. • I later found that the parties’ agreement to use the set-off Guideline amount as of June 2019 should also apply retroactively for the period when I found the parties had a shared parenting arrangement, May 2017 up to August 2020. N.I.’s argument was for the period May 2017 – September 2020.

The father was successful. • I ordered the set off Guideline amount between May 2017 up to August 2020 and the full table amount thereafter. • I also found the father was entitled to be reimbursed for certain expenses the mother had claimed which were neither a special nor an extraordinary expense and the father was entitled to file an accounting following receipt of my decision. • There was mixed success. [ 28 ] The father argued that the mother should not receive the full table amount after the children began living with her more than 60% of the time because the mother was withholding the children from him or “alienating” them.

I found that payment of the appropriate amount of child support is not contingent on what parenting time a parent is enjoying and vice versa. I ordered the father to pay the full Guideline amount as of the date I found the children were living with the mother over 60% of the time. [ 29 ] I determined that the total owed by the father to the mother was $23,915.56 .

As noted above, on November 29, 2022, the parties agreed to credit the father with $2,157.24 related to other expenses previously paid by N.I. which I found were neither special nor extraordinary. 7 Property [ 30 ] On February 2, 2018, the father filed a Response. He sought the division of the equity in the parties’ home pursuant to the Partition Act and the law of equity: • Before trial, the parties’ reached an agreement regarding the division of the proceeds of their home.

There was agreement between the parties that all property had been divided, subject to $25,000 being held in trust, which was part of the father’s portion of the proceeds of the sale of the parties’ home. • At trial, the mother argued that the father’s portion being held in trust following property division should be applied to child support owed to her.

The father argued it was not fair to withhold his portion of the proceeds of the sale of property for distribution as child support. • I determined the child support owed by the father to the mother was payable forthwith, but that father could choose to pay the debt in whatever manner he wished. • Despite my decision, the issue with respect to the funds was raised again as a live issue to be considered at the conference on November 29, 2022.

However, without intervention by me following my written decision, on November 29, 2022, the parties advised me they had reached an agreement to include a term in the final order dealing with the release of the father’s $25,000, held in trust, to the mother. 8 Time and complexity [ 31 ] In her submissions on costs, the mother argued that the matter was complicated as there were “four separate Orders addressing parenting concerns.” I would note that: • the Order issued April 10, 2018 , was granted at an appearance before another judge on March 28, 2018; • the Order granted April 26, 2018 , was issued on May 29, 2018 following an appearance before another judge ; • the Order granted June 16, 2019 , was an Interim Consent Order issued June 18, 2019, with the consent of the parties; and • the Order granted on August 7, 2020 , following a hearing before me, I changed the shared parenting arrangement to week about, but did not reduce the father’s parenting time. [ 32 ] Had the mother wished to claim costs for legal work provided by legal counsel from BOYNECLARKE or any other firm for an interim hearing before another judge in 2018, she should have made the application to that judge. • On March 28, 2018 , another judge heard (Order issued April 10, 2018) the matter on an emergency basis.

It was a hearing of

motion for directions, at which time the mother sought sole decision making. The parties reached a without prejudice agreement and an “interim interim” order was granted. At this time, Brendan Martin represented the mother and Kelsey Hudson represented the father. • On April 26, 2018 , (Order issued May 29, 2018) an interim hearing was held before another judge .

That judge granted an Interim Order, including a term directing that a shared parenting arrangement continue , which would place the children in the mother’s care on Mondays and Tuesdays, in the father’s care on Wednesday, and the parties’ alternating parenting on the weekends. At this time, Brendan Martin represented the mother and Kelsey Hudson represented the father. • On June 4, 2018 , the matter appeared for a conference before another judge .

The mother was seeking primary care and sole decision making with respect to the parties’ children, but was no longer requesting that the father’s parenting time be supervised. The mother alleged the father was not following the communication provisions included in the Interim Order. At this time, Brendan Martin represented the mother and Kelsey Hudson represented the father. [ 33 ] In or around June 2018, the Minister of Community Services – Child Protection became involved with the family.

The Children and Family Services Act proceeding was assigned to me and the Parenting and Support Act matter was removed from the docket. [ 34 ] Ten months later , on or about April 25, 2019 , a Notice of Motion for Interim Relief was filed with a request to address the issue of child support.

The matter of child support pursuant to the Parenting and Support Act was scheduled on my docket on June 18, 2019 , at the same time as a review of the Children and Family Services Act matter was being heard by me. [ 35 ] On June 18, 2019 ( Order issued June 18, 2019 ) the parties advised they had reached an agreement and had signed a consent order to address the issue of child support . The parties sought a half day judicial settlement conference to address property division and parenting. A representative from the Minister of Community Services was invited to the settlement conference.

Counsel Jessica Chapman appeared for the mother and counsel Kelsey Hudson for the father. [ 36 ] On October 24, 2019 the parties attended a settlement conference before another judge . No agreement was reached. Counsel Bryen Mooney appeared with the mother and counsel Kelsey Hudson with the father. [ 37 ] On December 12, 2019 , the Children and Family Services’ Act ( CFSA ) matter was scheduled for a review. The CFSA matter was terminated . The Parenting and Support Act file was travelling with the CFSA file at the same time.

Counel Bryen Mooney attended with the mother and counsel Kelsey Hudson attended with the father. [ 38 ] On January 31, 2020 the parties appeared before another judge . The issues before the Court were: parenting and decision making; child support; and property division. Various Orders for Production were granted by consent: the Halifax Regional Police file; the files from the children’s schools; the daughter’s counseling file with Wendy Green; and the son’s counselor’s file. No agreement was reached regarding the production of the Department Community Services’ file .

Directions were provided to the parties and the matter was adjourned to a further conference scheduled in March 2020. Counsel Bryen Mooney attended with the mother and counsel Kelsey Hudson attended with the father. [ 39 ] On July 27, 2020 , from 14:03 – 14:47 , the Parenting and Support Act matter was assigned to my docket after being removed from another judge’s docket in March 2020 due to Covid related concerns and an interim motion filed in June 2020 for Voice of Child Report. This was this matter’s first appearance before me following termination of the CFSA matter.

The mother claimed she was seeking to change the parenting arrangement as the children were refusing to see their father. I granted an Order for Production of the records held by the Minister of Community Services - Child Protection . The matter was adjourned to August 7, 2020 for a hearing regarding parenting time. At this time, counsel Bryen Mooney appeared for the mother and counsel Kelsey Hudson appeared for the father. [ 40 ] On August 7, 2020, from 11:06 – 12:32 and 14:02 – 15:07 the parties appeared before me for a hearing related to parenting time. The father had not seen the children since June 2020.

I gave an oral decision. I varied the Interim Order slightly, directing that shared parenting continue on a week about schedule, in an effort to minimize contact and conflict between the parties. I directed the mother to comply with the Order. The father was successful. The matter was adjourned to a further conference to address outstanding requests and directions. At this time, counsel Bryen Mooney appeared for the mother and counsel Kelsey Hudson appeared for the father. [ 41 ] On October 2, 2020 , 9:39 – 9:58 the parties appeared before me for a conference.

This was their third appearance before me for the PSA matter. The father asked that the children’s counseling be completed before a Voice of the Child Report was considered. The parties advised me they had reached an agreement regarding a video call

schedule and would discuss any in-person contact that could be arranged. The matter was adjourned to a further conference in February 2021. At this time, Jessica Chapman was legal counsel for the mother, and Kelsey Hudson was for the father. [ 42 ] On February 8, 2021, at 11:02 – 11:23 , the parties appeared before me for a further conference. This was their fourth appearance before me for the PSA matter. The parties confirmed that the father had not seen the parties’ children since June 2020. The mother alleged that the children were refusing to see their father.

The father was residing in the matrimonial home and it was alleged he had not made a payment on the mortgage for February 2021. The parties reached an agreement to allow for the preparation of a Voice of the Child Report . Jessica Chapman appeared as counsel for the mother and the father was representing himself. [ 43 ] On March 1, 2021, from 14:31 – 15:04, the matter was before another judge for case management. There was discussion regarding the appraisals of the matrimonial home. Directions for trial were provided.

Jessica Chapman for appeared for the mother and the father was representing himself. [ 44 ] On May 19, 2021, from 11:06 – 11:34 the parties appeared before me for a pre-trial conference. This was their fifth appearance before me pursuant to the PSA . New legal counsel appeared on the file for both parties: counsel William Leahey for the mother and counsel Kerri-Ann Robson for the father. These are the lawyers who later filed costs submissions in this matter.

[ 45 ] On October 29, 2021, from 10:34 – 10:59, a motion hearing was scheduled regarding requests for Orders for Production. This was their sixth appearance before me pursuant to the PSA . The parties reached an agreement . I raised the possibility of parenting time at Veith House given the children’s alleged resistence to spending time with their father. Further pre-trial issues were discussed.

Counsel William Leahey appeared with the mother and counsel Kerri-Ann Robson appeared with the father. [ 46 ] On February 7, 2022, from 12:02 – 12:18, a hearing of motions for directions was scheduled before me regarding an evidentiary matter complicated by the son’s refusal to allow his counselor to provide evidence to the Court. This was the seventh appearance before me pursuant to the PSA . The parties came to an agreement . Other discussions took place. Counsel William Leahey appeared with the mother and counsel Kerri-Ann Robson with the father. [ 47 ] A trial was heard over four days.

The time spent in trial breaks down as follows: • February 14, 2022 (10:00 – 10:55; 10:57- 11:57; 14:02- 14:05; 14:23-16:26); • February 15, 2022 (10:03 – 10:53: 11:01 – 12:09: 12:17 – 12:25: 14:05 – 14:28: 14:36 – 14:58: 15:10 – 15:17: 15:25 – 15:28: 15:30 – 15:51); • February 16, 2022 (10:05 – 12:01; 14:01 – 16:15); and • February 17, 2022 (10:09 – 12:49; 14:00 – 16:25). Counsel William Leahey represented the mother and counsel Kerri-Ann Robson represented the father. [ 48 ] Mr.

Leahey, counsel for the mother, requested and was granted permission to file written submissions by February 24, 2022, with the father’s counsel, Ms. Robson, having a right to reply to those submissions by February 28, 2022.

An advanced copy of my written decision was released to the parties on September 1, 2022. [ 49 ] I agree that issues did arise which needed to be addressed, including the parties’ son’s initial refusal to allow his counselor to provide any evidence to the Court, as well as the parties’ daughter’s counselor’s reluctance to disclose her file or discuss her involvement with the parties’ daughter with the parties or with the Court. Aside from the son’s refusal, the issues were not particularly unique to this case.

In any event, the hurdles were overcome mostly with the consent and cooperation of the parties and counsel. 9 The parties’ positions. [ 50 ] In support of her request of a cost award of $70,000, the mother referred to cases decided by the Honourable Justice Beryl MacDonald, formerly of this Court, who summarized the applicable principles in determining an appropriate costs award in N.D.L . v. M.S.L , 2010 NSSC 159 , and who found at paragraph 111, in Ibrahim v. Murphy 2017, NSSC 264 : [11] It is always in the child’s best interest for the child’s parents not to engage in litigation.

Anger, pride, a desire to win, jealousy, resentment, or dislike of the other parent may prevent a parent from objectively viewing a child’s situation. Why should every parent in such circumstances, who cannot agree with the other parent about parenting issues, bring his or her issues in the court and expect to be relieved from an obligation to compensate the successful parent? [ 51 ] The father referenced a decision by the Honourable Judge Timothy G. Daly in M.K. v. E.M . 2016 NSFC 32 . He stated that Judge Daly provided a useful

summary of the relevant principles to consider in costs decisions. I agree. [ 52 ] The father also quoted from a decision by the Honourable Justice Jollimore, MacLean v. Boylan 2011 NSSC 406 , and another decision by the Honourable Justice Muise in Harris v.

Durling 2016 NSSC 19 , wherein Justice Muise stated: One principled reason to deny a successful party costs is that a parent should not be deterred from litigating a bona fide parenting claim by the prospect of a costs award. …Reviewing the jurisprudence, a parent has been shielded from a costs order where the litigation was of central significance to the child’s parenting ( Harris v. Durling , para 15 ). [ 53 ] The father also referred to a decision of the Honourable Justice Gass (formerly of this Court) at paragraph 5 of Nemorin v.

Foote 2009 NSSC 19 : in custody, and especially mobility cases, where there is a justiciable issue addressing the best interests of the child, the risk of costs could deter litigants from pursuing a legitimate bona fide claim that should be heard and determined. [ 54 ] At trial in February 2022, the father had not seen his children in person since June 2020, despite existing interim orders for shared parenting.

I found there was evidence that the mother’s actions “were at times, concerning, such as allowing the children to refuse gifts or refusing a Zoom call from the father because it was not court ordered.” The father suggested that “judicial intervention was required to determine his bona fide claim” that the parenting arrangements needed to be addressed. I agree, however, I find the father’s trial position on parenting was not reasonable given the children’s ages, circumstances, and expressed wishes in advance of trial in February 2022. [ 55 ] In considering costs, I have also considered the case of KG v.

HG , 2021 NSSC 142 . As stated by the Honourable Justice

Theresa M. Forgeron in KG supra: [14] Rule 77 governs awards of costs in matters before the Supreme Court of Nova Scotia. In Armoyan supra, Fichaud, J.A., reviewed relevant principles as follows: The court's overall mandate is to "do justice between the parties": para. 10. Unless otherwise ordered, party and party costs are quantified according to the tariffs. The court has discretion to raise or lower the tariffs, applying listed factors, which include unaccepted written settlement offers and the conduct of the parties insofar as it affects the speed or expense of the proceeding: paras. 12 and 13 and Rule 77.07.

The Rule permits the court to award lump sum costs and depart from the tariffs in specified circumstances. Tariffs are the norm and there must be a reason to consider a lump sum: paras. 14 and 15. The basic principle is that costs “should afford a substantial contribution to the party's reasonable fees and expenses” which means not a complete indemnity, but rather more than 50 and less than 100% of a lawyer's reasonable bill for services: para. 16. The tariffs deliver the benefit of predictability by limiting the use of subjective discretion.

This works well in a conventional case whose circumstances conform generally to the parameters assumed by the tariffs.”: para 17. Some cases, however, “bear no resemblance to the tariffs’ assumptions.”: para 18.

For example, “[a] proceeding begun nominally as a chambers motion” “may assume trial functions”; “[a] case may have no ‘amount involved’ ”; efforts may be “substantially lessened by the efficiencies of capable counsel, or handicapped by obstructionism”; “[t]he amount claimed may vary widely from the amount awarded”; “[t]he case may assume a complexity, with a corresponding work load, that is far disproportionate to the court time by which costs are assessed under the tariffs”; “[t]here may be rejected settlement offers, formal or informal, that would have saved everyone significant expense”: para 18.

When “subjectivity exceeds a critical level, the tariff may be more distracting than useful” para 18. In such a situation, “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.”: para. 18. [17] Tariff A requires a determination of the amount involved. In this case, the amount involved is not easily ascertained for two reasons. First, child support was ordered retroactively and prospectively.

Prospective child support is not amenable to quantification because it can be increased or decreased based on changing circumstances, such as the payor’s income. Second, the most significant litigated issue concerned parenting and the father’s concurrent alienation claim. Neither of these issues are monetary ones. my emphasis. [18] In his submissions, the father urges me to equate $20,000 for each day of trial based on the rule of thumb discussed in Gomez v. Ahren, supra . The mother objects based on the comments of Fichaud, JA in Armoyan v. Armoyan , supra, and my decision of Illingworth v.

Illingworth, supra . [19] I agree with the mother’s position. Fichaud, JA did not employ a rule of thumb when calculating costs in Armoyan v Armoyan, supra. Further, I note that the rule of thumb was rejected in Veinot v Veinot Estate, 1998 NSCA 164 , wherein Pugsley, J.A. held that the rule of thumb employed by the trial judge was not “an appropriate yardstick.” Rather, it was, in his view, “an arbitrary classification which in most cases, except by happenstance, would be of little relevance. ….”. [20] Further, the rule of thumb is dated.

The initial rule of thumb equated every day of trial to $15,000: Urquhart v. Urquhart [1998], N.S.J. No. 310 relying on Venoit v Venoit [1998], SBW No. 4053. Nine years later, it was increased by Lynch, J. in Jachimowicz v. Jachimowicz , 2007 NSSC 303 to $20,000 per day. Fourteen years have since past. If a rule of thumb is to be used, it should be updated to $30,000 per day. I find, however, that such arbitrary assignments do not assist in the principled calculation mandated by Rule 77 and endorsed by Fichaud, JA in Armoyan v.

Armoyan , supra . [21] Instead, according to the tariffs, I am to assess the proceeding’s complexity and importance when determining the amount involved in a non-monetary case. In this case, the parenting issues were both complex and important. Complexity was proven by the following: • Evidence was obtained from two experts - a parental capacity assessor and a psychiatrist.

Further evidence was admitted from two other psychologists, two counsellors, police officers, a coach, the parties, family members, and the protection file of the Minister of Community Services. • The father raised serious issues of parental alienation and submitted scholarly articles in support of his position.

The father was singularly focused on and relentlessly pursued his theory of the case by filing large volumes of written materials with the Court and with the parental capacity assessor. • Although many witnesses filed affidavits or reports to reduce the amount of time spent on direct evidence, the hearing was nevertheless protracted. [22] Further, I find that the litigated issues were important because both issues related to the children. The most contentious issue

concerned the parenting plan while the second issue related to child support. [23] Despite finding that the proceeding was both complex and important, I remain unable to quantify the amount involved. Contrary to the father’s submission, a principled calculation is not derived by employing a rule of thumb.

I therefore must circumvent the tariffs and channel my discretion in arriving at a principled calculation of a lump sum based on the successful party’s reasonable legal fees and other relevant factors. [ 56 ] The claims before the Court in this matter included custody, parenting, child support, and property division.

As in the case of KG , supra “the litigaged issues were important because both issues related to the children” and the most “contentious issue concerned the parenting plan while the second issue related to child support.” [ 57 ] Possibly for different reasons, I agree with the mother’s submissions that a principled calculation of costs cannot be derived by employing a rule of thumb.

I must therefore “circumvent the tariffs and channel my discretion in arriving at a principled calcualtion of a lump sum based on the successful party’s reasonable legal fees and other relevant factors.” [ 58 ] As noted, there was mixed success: • the father was the successful litigant with respect to maintaining joint custody by agreement of the parties after my decision was rendered but in keeping with my findings. • The mother was successful with respect to the parenting plan in that she was awarded primary care of both the parties’ children.

The father was awarded supervised parenting time through Veith House with a possible review with respect to the parties’ daughter; • There was mixed success with respect to my findings on child support. [ 59 ] Because of the children’s refusal to see their father, likely the result of both the father’s emotional reactivity generally and his reactivity to mom and the mom’s ongoing actions,

interpretations of orders, and failure/inability to follow orders, I found I had no other option but to place the children primarily with the mother. The parenting arrangement resulted in the father having to pay full child support according to the Guidelines on a prospective basis from the date of material change, when the children’s primary residence with the mother was more than 60% of the time. [ 60 ] The most important issue to be decided was the issue of parenting. The mother was successful on that issue.

Should the mother’s success with respect to the placement of the children with her more than 60% of the time and an order for full child support as of the parenting change result in an award of costs in the amount of $70,000? [ 61 ] I have considered the solicitor’s affidavit on costs filed with the Court on October 27, 2022, after initial submissions by the mother on October 24, 2022.

Counsel for the mother claimed among other things that: • “legal fees paid by [the mother] to her previous Counsel, BOYNECLARKE between September 12 th , 2018 and November 22, 2021, (with new counsel beginning work on Parenting and Support Act file in March 2021), including fees, HST and disbursements $59,582.62.” • In addition, legal fees owed to Leahey Legal Services Limited included legal fees of $34,757.30, disbursements of $2,47.67, and taxes of $5,235.78, + an oustanding amount of $3,047.12 to be offset against her trust account of $25,000 = $3,045.00 or $43,741.75 .

Together with the $59,582.62 from BOYNECLARKE the amount is $103,324.37. [ 62 ] Mr. Leahey attached receipts for legal services by Leahey Legal Services between March 9, 2021 and October 10, 2022, referenced above.

He referred to a “courtesy discount of $22,819.10” granted to the mother. [ 63 ] There is no evidence on the Court’s file or in the parties’ briefs of any request for the Court to consider legal costs from 2018 “in the cause” for the period when the parties first appeared before another judge in March 2018, April 2018, and June 2018 pursuant to the Parenting and Support Act before the Children and Family Services Act matter began in June 2018 ending in December 2019. [ 64 ] There was no argument presented about who was successful in the early interim matters involving parenting (March and April 2018).

Arguably, two separate judges of this Court ordered shared parenting to continue. One was myself, as recently as August 2020.

I do recognize it was the father who was mostly successful early on in the litigation involving parenting. [ 65 ] In addition, counsel did not clarify for the Court which costs may have been attributable or related to BOYNECLARKE’s representation of the mother in the Children and Family Services Act proceeding, which commenced in or around June 2018 and terminated in December 2019, versus the early ongoing negotiatons under the Parenting and Support Act proceeding, including the interim application for child support started in April 2019, some ten months after the CFSA proceeding commenced.

I do note that without a hearing of the matter, an interim agreement was reached in relation to child support in June 2019, and that prior to trial I was advised that an agreement was reached with respect to property division (the house).

[ 66 ] I am not prepared to award costs for either party for the period between 2018 and June 2019, or for the settlement conference before another judge in October 2019, or the appearance before another judge in January 2020 when issues such as disclosure were still outstanding from both. If the parties were seeking costs for those interim decisions or agreements they should have made that clear to the Court. I am prepared to consider costs related to appearances beginning in July 2020, when I scheduled the matter for a hearing in August 2020 related to the father’s parenting time.

At the hearing in August 2020, the father was successful. [ 67 ] In October 2020, February 2021, and March 2021, the Court met with the parties following the reported refusal of the children to spend time with their father according my interim decision rendered in August 2020. Despite the children’s reported refusal and their attendance at counseling, no expert report was filed with the Court. In Februray 2021, the father consented to a Voice of the Child Report being prepared and the mother requested five days of trial.

The parties were referred to case management scheduled with another judge in March 2021. [ 68 ] At the case management conference held before another judge in March 2021, the parties were directed, among other things to: • Indicate which witnesses they intended to call as experts, whether they would file a physicians narrative or expert report, and address Rule 55 at next conference; • Send the appraisal of the matrimonial home, which had been received by the mother, to the father.

The father agreed with the appraised value and indicated that the appraiser did not need to be called to testify; • Address the issue of the mother’s possible co-habitation with a partner at the next conference; • Confirm their witness lists prior to the next conference; and • File updated Statements of Income by April 30, 2021. The conferences held in October 2020, February 2021, and case management in March 2021, were necessary to determine how to move forward after the children’s decision not to see their father.

I am not prepared to grant costs related to those organizational conferences. [ 69 ] New counsel came on the file in May 2021. Trial dates were set. Motion hearings were scheduled in October 2021 and on February 7, 2022, but they resolved by consent prior to trial. [ 70 ] The length of trial is to be fixed by me. When referring to Tariff A in her brief, before arguing in the alternative, the mother claimed the length of trial was four (4) days.

I agree the length was four days, and if using the “Rule of Thumb” the amount involved would be $80,000, with Scale 2 of $9,750.00 + $2,000 per day of trial = $11,750 x 4 = $47,000 not including disbursements. In the alternative, the mother argued that an award of $70,000 would be more appropriate considering the legal costs of $59,582.62 charged by BOYNECLARKE and legal fees charged by Leahey Legal Services of $43,741.75 = $103,324.37.

However, I have indicated I am not prepared to consider legal costs payable to BOYNECLARKE for work completed between 2018 and early 2021, for the reasons noted above. [ 71 ] That leaves the legal costs of $43,741.75 or $10,935.43 per day of trial charged by Leahey Legal Services before accounting for a courtesy discount of $22,819.10. Assuming I have understood correctly and the total fees at Leahey Legal Services were intially $66,560.85 before the discount of $22,819.10, which would equal $16,640.21 per day of trial.

Ultimately, I will base my decision on the amount charged to the mother, which totals $43,741.75 or $10,935.43 per day. [ 72 ] As noted above, my duty is to "do justice between the parties" and to quantify party and party costs according to the tariffs unless there is good reason not to. I understand I have the discretion to raise or lower the tariffs, applying listed factors, including the conduct of the parties insofar as it affects the speed or expense of the proceeding.

I find that the various agreements reached by the parties reduced the length and expenses of the proceeding. [ 73 ] The Rule on Costs permits me to award lump sum costs and depart from the tariffs in specified circumstances. I understand that Tariffs are the norm and there must be a reason to consider a lump sum.

I am aware and I have considered that the basic principle is that costs “should afford a substantial contribution to the party's reasonable fees and expenses” which means not a complete indemnity, but rather more than 50% and less than 100% of a lawyer's reasonable bill for services. [ 74 ] As noted in KG , supra, Tariff A requires a determination of the amount involved and like that case, in this case “ the amount involved is not easily ascertained for two reasons . First, child support was ordered retroactively and prospectively.

Prospective child support is not amenable to quantification because it can be increased or decreased based on changing circumstances , such as the payor’s income. Second, the most significant litigated issue concerned parenting and the father’s concurrent alienation claim.

Neither of these issues are monetary ones .” (my emphasis) [ 75 ] Like Justice Theresa Forgeron in KG , supra , I rely on decisions such as the decision of Fichaud, JA when he did not employ a rule of thumb when calculating costs in Armoyan v Armoyan, supra or when the rule of thumb was rejected in Veinot v Veinot Estate , 1998 NSCA 164 , when Pugsley, J.A. held that the rule of thumb employed by the trial judge was not “an appropriate yardstick.” Rather, it was, in his view, “an arbitrary classification which in most cases, except by happenstance, would be of little relevance. ….”.

The Rule of Thumb does not assist in the principled calculation mandated by Rule 77 and endorsed by Fichaud, JA in Armoyan v. Armoyan , supra . [ 76 ] Instead, according to the tariffs, I must assess the proceeding’s complexity and importance when determining the amount involved in a non-monetary case . In this case, I find the parenting issues were somewhat less complex than in KG , supra , although I also find they were important. Complexity was determined by the following:

• Evidence was admitted from a police officer, a social worker, the son’s counselor as a fact witness, the Voice of the Child assessor, family members, an independent witness, and the parties, among other witnesses and the protection file of the Minister of Community Services was also admitted as evidence. • The father in this case also raised serious issues of parental alienation.

The father was focused on and he pursued the theory that the children’s wishes were solely guided by the mother’s interference. • As in KG , supra, many witnesses filed affidavits or reports to reduce the amount of time spent on direct evidence. The hearing of this matter was also protracted. [ 77 ] Despite finding that the proceeding was both somewhat complex and it was important, I remain unable to quantify the amount involved. I agree with the cases above which find that a principled calculation cannot be derived by employing a rule of thumb.

I, like Justice Forgeron in KG , supra, “must circumvent the tariffs and channel my discretion in arriving at a principled calculation of a lump sum based on the successful party’s reasonable legal fees and other relevant factors.” [ 78 ] I find legal costs of $43,741.75 (including all disbursements) or $10,935.43 per day of trial charged by Leahey Legal Services after accounting for a courtesy discount of $22,819.10, are reasonable legal fees.

Given the mother’s success with respect to parenting, the most important issue at trial, I order that the father pay to the mother 60% of her reasonable costs of litigation $43,741.75 (60%) = $26,245.05 forthwith. 10 Directions [ 79 ] The mother’s counsel shall draft the Order for Costs which are payable forthwith. Cormier, J.