SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: B.M. v. A. “L.”G, 2015 NSSC 51
Date: 2015-02-17
Docket: Sydney No.84478
Registry: Sydney
Between:
B.M.
Applicant
v.
A. “L.” G.
Respondent
|
Judge: |
The Honourable Justice Theresa M. Forgeron |
|
Heard: |
Costs submissions received on January 5, 2015 |
|
Decision: |
February 17, 2015 |
|
Counsel: |
B.M. on his own behalf A.G. on his own behalf |
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By the Court:
[1] Introduction
[2] Mr. M seeks costs in the wake of the trial and decision reported at BM v. A “L”G, 2014 NSSC 443. Mr. M’s submissions were received on January 5, 2015. There was no response from Mr. G.
[3] Issue
[4] Should costs be awarded to Mr. M?
[5] Analysis
[6] Position of Mr. M
[7] Although Mr. M was self-represented at trial, he nonetheless seeks costs of $6,477.76 which represents 50% of the actual legal fees which he incurred. Mr. M hired lawyers to represent him at various times during the course of this proceeding.
[8] Mr. M seeks costs, even though this court found that success was mixed at para. 63 of the written decision. He does so because of what he terms, a favorable settlement offer, dated September 19, 2014, which Mr. G did not accept. Mr. M submits that the court’s decision provided Mr. G with a result no better than what Mr. G would have obtained had he accepted the settlement offer.
[9] Position of Mr. G
[10] Mr. G’s position is not known.
[11] Decision
[12] Costs in family proceedings are governed by Rule 77. The interplay between settlement offers and costs, as outlined in Rule 10, do not apply to family proceedings by virtue of Rule 59.39(7).
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[13] Before discussing quantum, I must determine if Mr. M is the successful litigant in view of the decision and the rejected settlement offer. The settlement offer proposed that the terms of the interim consent order would be made final, with the caveat that Mr. M must notify Mr. G when each child ceased to be dependent.
[14] Financially, it is clear that Mr. M received a more favorable result from the court than as contained in the settlement offer. For example, the settlement offer proposed child support be paid at a rate of $498 per month, while the decision required a payment of $563 per month. The settlement offer did not suggest an adjustment for retroactive support; the decision required a payment of $3,192. Both the settlement offer and decision indicated no payment for s. 7 expenses. From a financial perspective, Mr. G should have accepted Mr. M’s settlement offer.
[15] The decision, however, was not restricted to financial issues. The court also determined parenting issues. Here, Mr. G fared better with the court’s decision than as was offered in the settlement proposal. For example, the interim consent order provided Mr. G with reasonable access, while the decision provided joint custody and a specific plan to ensure a stronger and more meaningful relationship between the children and Mr. G. Therefore, from a nonfinancial perspective, Mr. G, and indeed the children, were in a better position as a result of the court’s decision. This finding is tempered by the fact that Mr. M was not opposed to the parenting terms that were set out in the court’s decision.
[16] Given these findings, and although success was somewhat divided, I find that Mr. M is nonetheless entitled to costs, but not in an amount that represents 50% of the legal fees that he incurred. Mr. M is a lay litigant; costs are not calculated at the same rate as costs payable to legal counsel: D.E.M. v. J.M.M., 2012 PECA 7; Bruno v. Keinick, 2012 NSSC 434.
[17] In the circumstances, I award costs in the amount of $750 for the following reasons:
• The settlement offer was not forwarded until September 19, 2014, about 19 months after the application was commenced, and only a few months before
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the December hearing was scheduled to begin. By this time, the parties had become entrenched in their positions.
• The legal accounts presented confirm that legal fees were charged for matters unrelated to this proceedings, including the preparation and execution of a will, trust agreement, deed, power attorney, statutory declaration, and a FOIPOP application.
• The issues before the court were not complicated. Costs must reflect this reality, rather than the legal fees actually incurred to process the file. The amount of legal fees incurred over a two year period were high given the straight forward nature of the case, and given that legal counsel did not attend at the hearing.
• The hearing took less than two full days. The parties were self-represented during the hearing.
• Section 7 expense claims were dismissed at trial and their litigation consumed an unnecessary amount of court time, and trial preparation time. I infer this to be true based upon the number of documents tendered on this issue. Mr. G should not be required to contribute to any costs associated with a s. 7 claim.
• Mr. M and Mr. G were co-operative and appropriate during the hearing.
• The legal accounts show some duplication of efforts as legal counsel changed from time to time, although through no fault of Mr. M.
• Some of the disbursements disclosed in the legal accounts are not ones which courts general approve for costs purposes, including file administration fees, on line legal research fees, and photocopy and fax fees charged out at a rate greater than 10 cents per page.
• Mr. G’s financial circumstances are challenging. The decision requires Mr. G to pay both the table amount of child support and retroactive child support. Mr. G does not own liquid assets. He has no savings or investments, other than his retirement funds, which cannot be accessed. Mr. G does not have the ability to pay a significant cost award. Priority must be assigned to the payment of child support.
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[18] Conclusion
[19] Mr. G will have until July 30, 2015 to pay the cost award of $750 to Mr. M. The court will draft and circulate the order.
Forgeron, J.