Supreme Court of Nova Scotia
(FAMILY DIVISION)
Citation: Gomez v. Ahrens, 2015 NSSC 3
Date: 20150106
Docket: 1201-067926
Registry: Halifax
Between:
Martin G. Gomez
Petitioner
v.
Lori K. Ahrens
Respondent
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Judge: |
The Honourable Justice Beryl A. MacDonald |
|
Written Submissions:
|
Lori K. Ahrens Christopher I. Robinson |
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Counsel: |
Christopher I. Robinson for the Petitioner; Lori K. Ahrens, self-represented, the Respondent |
By the Court:
[1] On May 5, 2011, after rendering an oral decision in April 2011, I granted an Interim Order pursuant to the Maintenance and Custody Act placing the party’s children in their joint custody. Mr. Gomez was to have primary care and detailed terms of access were provided to Ms. Ahrens. She was to pay child maintenance to Mr. Gomez but he was to pay spousal support to her. The rental premise was to be occupied by Mr. Gomez and the children. At the time I expected the parties would either resolve outstanding issues in respect to the long term parenting plan and division of matrimonial property and debt by consent or set the matter down for a final hearing. Both parties were represented by legal counsel.
[2] The Maintenance and Custody Act /Matrimonial Property Act Application and Interim Motion had been commenced by Ms. Gomez. In her documents she did check the box indication she was seeking costs. In his Response Mr. Gomez did not do so. He did not request costs when the Interim Order was granted.
[3] In March 2014, Ms. Ahrens filed an Interim Motion seeking to vary the Interim Order granted on May 5, 2011. This was set for a hearing before me on May 13, 2014. Ms. Ahrens appeared, self-represented. Mr. Gomez had legal counsel and he had filed a Petition for Divorce. He requested a consolidation of both proceedings and this was granted. I refused to hear the interim motion to vary the Interim Order and provided a scheduling notification for a day and a half for final trial on all issues. That trial was held July 30 and 31. On July 31 I provided the parties with an oral decision.
[4] Neither the Petition nor the Answer have a check box for costs. Neither party added this request under the check box for “other” relief. No request for costs was made after I gave my decision. Mr. Gomez is now requesting an order for costs against Ms. Ahrens both for the trial and the Maintenance and Custody Act Interim Motion.
[5] At the Divorce trial Mr. Gomez requested that I grant him custody and primary care. He requested child support, imputation of income to Ms. Ahrens and an order reducing the spousal support payment with a termination date in May 2015. He wanted various debts to be equally shared by Ms. Ahrens but wanted to keep a pension benefit earned through his employment in the United States and administered by a United States corporation.
[6] At the divorce trial Ms. Ahrens requested that I grant her sole custody and primary care. She requested child and spousal support. She alleged Mr. Gomez had significantly more income and assets than his financial and property statements revealed. She wanted the pension benefit to be divided equally but did not want to be responsible for any of the debt.
[7] I decided the children should be in the joint custody of the parties. Mr. Gomez was to have primary care with access to Ms. Ahrens under a very detailed parenting plan. Mr. Gomez retained his pension without division. Two debts, not held jointly with Ms. Ahrens, remained the sole responsibility of Mr. Gomez. The Wells Fargo mortgage on a US property was “in collections” and remained a contingent liability of both parties. I reserved the court’s jurisdiction to allocate proportional responsibility for this debt should collection procedures be pursued against the parties assets in Canada. Ms. Ahrens was imputed a modest income at $22,000.00. She was to pay child support. Mr. Gomez’ income was calculated based upon the disclosure he had provided. He was to continue to pay spousal support until May 1, 2016.
[8] Mr. Gomez submits he was the successful party in both of the proceedings before me and as such is entitled to costs.
[9] Ms. Ahrens objects to an award for costs because:
• No request for costs was made at the conclusion of the Interim Hearing or the trial.
• An order has been granted and it does not contain a provision for costs.
• There was mixed success in these proceedings.
• She has little income and cannot afford to pay a cost award.
• Mr. Gomez removed the children from a residence close to her without her consent complicating the parenting arrangement.
• Mr. Gomez is not allowing her review the children’s school work and he is not obeying the terms of the Order.
• Mr. Gomez “does not pay his taxes to avoid a fair and equal division of assets”.
• She did not have legal representation at the trial. “I was left in an unfair situation in the courts being without reorientation and Mr. Gomez affording a high priced lawyer, and greatly taken advantage of due to this fact.”
[10] While it is unusual to comment upon the reasons for a judgment in a cost decision, because of the nature of some of Ms. Ahrens objections, I consider it important to remind her about my findings of fact leading to the decision I made. I commented upon much of this during my oral decision but I do understand that many who must listen to oral decisions do not always fully appreciate what is being said at the time.
[11] When the parties first appeared before me they were both living in a home that was rented by Mr. Gomez and it was clear both would eventually need to find alternate accommodation. Ms. Ahrens had a very irregular work schedule but Mr. Gomez worked from home. On or about May 2012 Mr. Gomez was informed by the owner of the home he was renting that he would need to move because the owner intended to take possession. He was given approximately 45 days’ notice to obtain alternate accommodation. By this time Mr. Gomez was in a new relationship and his partner did have a home in Brookfield, Nova Scotia. He informed Ms. Ahrens of his intention to move to Brookfield and her primary concern was whether he would continue to transport the children for the purposes of her parenting time as outlined in the Interim Order. Ms. Ahrens does not have a car nor does she have a driver’s license. At that time Ms. Ahrens was also considering a move into a home owned by her new partner located in Bedford, Nova Scotia. Both parties moved their residences as described. Ms. Ahrens did not file any application at the time of the move objecting to this move and the Interim Order did not require Mr. Gomez to remain a resident of the Halifax Regional Municipality. As a result I did not accept Ms. Ahrens after-the-fact complaint about Mr. Gomez change of residence.
[12] My decision placed the children in Ms. Ahrens care on the first, second and fourth weekend of every month from 4:00 p.m. on Friday until 6:00 p.m. on Sunday. If she could transport the children to their school on Monday morning she could continue to care for them Sunday night on her weekends. She would have care of the children at other times, long weekends, during summer vacation, Christmas and so on. The Order specifically provides Ms. Ahrens with the right to directly contact the children's doctors, dentists, therapists, teachers and other third-party service providers to request and receive information and consult about the children. I provided this to her to avoid the complaint that she was not receiving information from Mr. Gomez. She is still making this complaint but if there is information she considers important, that she has not received, she can obtain it on her own.
[13] Ms. Ahrens complains that she does not have an opportunity to parent the children at times other than those outlined in the Corollary Relief Order. The Order does provide that the parties can arrange for alternate or additional parenting time for Ms. Ahrens provided both agree. At the time I reviewed this matter during the Divorce Trial Ms. Ahrens had a very irregular work schedule, as she did when I made the Interim Order. Frequently on the Sundays when the children were to be in her care they in fact were cared for by her new partner because she was working. If she considers that Mr. Gomez is not providing her parenting time with the children in accordance with the terms of the Corollary Relief Order, when she is in fact available to parent the children, she is advised to seek legal advice about enforcement procedures in respect to the Order.
[14] During the Divorce Trial Ms. Ahrens alleged that Mr. Gomez was hiding income. Her comment about nonpayment of taxes relates to some years during which she alleged he did not file US or Canadian Income Tax Returns when he was required to do so. I did not find it necessary to inquire further into this allegation because I had sufficient current information before me about his current and past income upon which to make the Order I made. Ms. Ahrens may have convinced herself that if she could have afforded to engage a lawyer she would have somehow found evidence to prove that I should impute greater income to Mr. Gomez than what was revealed in the material before me during the Trial. I cannot comment upon whether that could have happened but the reality for Ms. Ahrens is this is not a reason to deny costs.
[15] I now turn my attention to the factors I must consider when faced with an application for a cost award. The Civil Procedure Rules provide as follows: Rule 77.02 (1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.
(2) Nothing in these Rules limits the general discretion of the judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle…
[16] At one time it was generally considered inappropriate to grant costs in cases involving custody of or access to children. That no longer is accepted as a general rule. Costs have long been considered as a deterrent to those who would bring unmeritorious cases before the Court. Many parents want to have primary care or at the very least shared parenting of his or her children but that desire must be tempered by a realistic evaluation about whether his or her plan is in the best interest of the children. The potential for an unfavorable cost award has been suggested as a means by which those realities can be bought to bear upon the parent’s circumstances. Nevertheless there will always be cases where a judge will exercise his or her discretion not to award costs.
[17] Some of the more common principles that guide decision making in cost applications are found in Landymore v. Hardy (1992), 112 N.S.R. (2d) 410 (T.D.); Campbell v. Jones et al. (2001), 197 N.S.R. (2d) 212 (T.D.); Grant v. Grant (2000) , 200 N.S.R. (2d) 173 (T.D.); Bennett v. Bennett (1981), 45 N.S.R. (2d) 683 (T.D.); Kaye v. Campbell (1984), 65 N.S.R. (2d) 173 (T.D.); Kennedy-Dowell v. Dowell 2002 CarswellNS 487; Urquhart v. Urquhart (1998), 169 N.S.R. (2d) 134 (T.D.)); Jachimowicz v. Jachimowicz (2007), 258 N.S.R. (2d) 304 (T.D.). My summary of the principles relevant to this case are that:
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, unnecessarily increasing costs to a party, and failure to disclose information may justify a decision not to award costs to an otherwise successful party or 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 in presenting 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. 2005 NSFC 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 may dictate that the successful party’s recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65].”
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, is the dollar amount awarded to the successful party at the Trial. If the Trial did not involve a money amount other factors apply. The nature of matrimonial 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 of trial to an amount of $20,000.00 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 is preferable not to increase artificially the “amount involved”, but rather, to award a lump sum”. However, departure from the tariff should be infrequent.
11. In determining what are “reasonable expenses”, the fees billed to a successful party may be considered but this is only one factor among 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 examine the reasonableness of the offer compared to the parties position at trial and the ultimate decision of the Court.
[18]
Mr. Gomez is requesting costs based upon the
tariff for a two day hearing inclusive of the time required for the interim
hearing that required ½ day hearing and an appearance to hear the oral
decision.
[19] First I must decide whether Mr. Gomez was the successful party at both the Interim Hearing and the Trial. At the Interim Hearing, although Mr. Gomez was not granted custody, he was granted the other relief he requested and he did not devote significant hearing time to the custody issue. He was successful party.
[20] Ms. Ahrens has complained that costs were not requested at either the Interim Hearing or the Divorce Trial. Frequently when requests for costs are made at the end of interim hearings the matter is left to be resolved at the final hearing. Failure to request costs is not an impediment to a later application for costs.
[21] At the Divorce Trial Mr. Gomez was not granted custody, spousal support was not reduced and the termination date was extended a year longer than he had requested. However the issue which consumed the majority of documentation and court time related to the parenting plan and the question of division of assets and debts. Although the exact details of his parenting plan were not accepted by the court he was given primary care and his submissions in respect to the assets and debts were accepted by the Court. He was to receive child support as requested and income was imputed to Ms. Ahrens while her submissions about imputing income to him were rejected. He was the successful party.
[22] Costs for Interim Motions are usually considered with reference to Tariff C although this also is subject to the judge’s discretion and the provisions of the Tariff state:
(3) In the exercise of discretion to award costs following an application, a Judge presiding in Chambers, notwithstanding this Tariff C, may award costs that are just and appropriate in the circumstances of the application.
[23] Costs for a motion lasting more than ½ day but less than 1 day are suggested from $1,000.00 to 2,000.00.
[24] I do not consider it appropriate to include the time taken to complete the Interim Hearing in the “length of trial” analysis for the Divorce Hearing pursuant to Tariff A; although in this case the dollar amounts are not substantially different.
[25] Using the Tariff analysis the Divorce Hearing at 1 ½ days would equate to an “amount involved” of $30,000.00. At the basic scale this would attract costs in the amount of $6,250.00. The length of the trial would attract an additional $3,000.00. Tariff C would add an additional $1,000.00 or $2,000.00 to this amount for an overall award of $10,250.00 - $11,250.00. In recognition of Ms. Ahrens limited financial resources Mr. Gomez is requesting a lump sum of $9,500.00 inclusive of disbursements.
[26] It is suggested that departure from The Costs and Fees Tariff should be infrequent. However there are circumstances when that departure can be justified. One such circumstance relates to the ability of the person against whom the award is requested to pay that award without affecting that person's ability to financially provide for the children when they are in that person's care. In this case although Ms. Ahrens has a partner, it is not his responsibility to provide financial support for her children. He may be doing so by providing a home in which they all live but I do not consider that to be a reason why I should ignore how little earned income is available to Ms. Ahrens at this time. She was in a relationship with Mr. Gomez for approximately 8 years. She was completely dependent upon his financial support. She has no specialized education and few marketable employment skills. A cost award will claw back much of the spousal support I have ordered Mr. Gomez to pay and it will impair Ms. Ahrens ability to provide for the financial needs of the children when they are in her care.
[27] The Interim Hearing occurred at a time when there was no post separation parenting pattern previously established. The parties were still occupying the matrimonial residence. Ms. Ahrens’ case was not without merit. Notwithstanding Mr. Gomez success, given Ms. Ahrens’ financial circumstances, I would not have awarded costs against her.
[28] The situation in respect to the Divorce Trial is somewhat different. By then the children had been in the primary care of Mr. Gomez for almost 3 years. Neither party lived close to the other. Ms. Ahrens wanted to uproot the children, who appeared to be thriving in their father’s care, not because Mr. Gomez’ care was deficient but because she did not consider the school in Brookfield to be as good as the one they would attend in Bedford if they lived with her. She had no evidence to support this assertion. In addition she believed a parenting change should occur because in Bedford the children would be enrolled in several organized recreational activities. Mr. Gomez was content to permit the children to engage in unstructured play and to enjoy the recreation that rural children pursue. Ms. Ahrens considered those to be inadequate to the children’s needs but she had no evidence to present to the Court about why this should be accepted as a reason to change the parenting arrangements. As a result her request for change had little merit, but that request was the primary reason why a trial was required.
[29] Having considered all of the factors mentioned in this decision I award Mr. Gomez costs in the amount of $4,000.00 inclusive of disbursements.
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Beryl A. MacDonald, J.