(FAMILY DIVISION)
Citation: Wagg v. Wagg, 2009 NSSC 32
Date: 20090205
Docket: 1201-53959
Registry: Halifax
Between:
Thomas Wagg
Applicant
v.
Mary Wagg
Respondent
Judge: The Honourable Justice Moira C. Legere Sers
Final Written
Submissions on Costs: Kenzie MacKinnon - December 19, 2008
LouAnn Chiasson - December 1, 2008
Counsel: Kenzie MacKinnon, for the applicant
LouAnn Chiasson, for the respondent
By the Court:
[1] This was an application to terminate child support and spousal support pursuant to s. 17 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3. This was a 17‑year marriage. Mrs. Wagg remained outside the workforce for 14 years. The applicant, Mr. Wagg, supported and encouraged Mrs. Wagg to be a stay‑at‑home parent almost up to the date of separation, discouraging any efforts to retrain.
[2] Mrs. Wagg was 39 years of age at the date of separation while the applicant was 45 years old. Mr. Wagg is currently 55 years old and the respondent was 49 at the time of the application.
[3] Mrs. Wagg made diligent efforts to attain self‑sufficiency. The Court found her efforts were interrupted in part by Mr. Wagg's failure to engage in appropriate resolution of the issues throughout.
[4] The court and both counsel noted that the respondent, Mrs. Wagg, was a strong model for self‑sufficiency. She clearly exhibited an intention to become self-sufficient.
[5] The Court further concluded that, up until her current difficulty, she was able to place herself in a more positive situation, certainly moving towards self‑sufficiency despite the number of obstacles she faced, including the manner in which the separation and divorce took place, subsequent litigation regarding child custody and her own difficulties in re‑entering the workforce.
[6] The Court increased spousal support at the 10‑year mark to be reduced gradually over a three‑year period. The onus would be on Mrs. Wagg at the end of the three years to prove ongoing entitlement.
[7] It is reasonable for Mr. Wagg to enquire as to Mrs. Wagg's financial circumstances after a 10‑year period.
[8] This case was unusual. Mrs. Wagg's diligent efforts to attain self‑sufficiency were noted. However, her employment was terminated shortly before the hearing, entirely outside of her control despite her significant efforts. Thus the fact situation under which the parties operated changed significantly before the hearing began.
[9] In the original Decision at paragraph 11, the Court concluded "the clear and constant expectation of the parties during the marriage to the date of separation was that Mr. Wagg was exclusively responsible as the financial provider."
[10] The Court specifically noted that while Mrs. Wagg had some educational training, her re‑entry into the workforce would "not be swift or easy but with education and retraining she can improve her employment prospects and, to some extent, lessen her financial dependency on Mr. Wagg at some time in the future."
[11] This case has a significant litigation history. This cost decision does not focus on the litigation history. The course of this proceeding exemplified fairly consistently the refusal of Mr. Wagg to provide full, complete and accurate financial disclosure. In this instance, the court only become aware of the exact details of his most current income by way of a letter from his employer submitted post‑trial. His common‑law partner did not respond in full to the order to third parties to disclose.
[12] Mr. Wagg provided late, inadequate and not always accurate financial disclosure. This increased the difficulty for the court in determining his income as well as difficult for the respondent to prepare for the hearing.
[13] Mr. Wagg also breached the ongoing court-ordered requirement that he maintain current life insurance with the petitioner being named as beneficiary.
[14] Mrs. Wagg will continued to receive her pay until the end of December 2008. It was as a result of the recent events and significant deterioration in her financial ability to support herself that the spousal support was increased with a view to decreasing over a three year period.
[15] The spousal support guidelines indicated a maximum period of time of 17 years to indefinite. The court found that spousal support would not be unending. The court further noted that the path was marred by misfortune, in large part arising from the marriage, the subsequent separation from a post-separation related marriage and partly arising from circumstances outside of the marriage.
Child Support
[16] Two days prior to the contested hearing, on September 8, 2008, Mr. Wagg withdrew his application to terminate child support. The parties agreed on direct payment to a date certain. The Respondent argues this should have been decided earlier, avoiding unnecessary costs. His position with respect to the termination of child support was not reasonable given the family history of support to the son. However, the daughter was finishing a second degree. Success on this issue was not a certainty. The facts and their history and his consent are case specific.
[17] In addition, Mr. Wagg, as any payor parent, is entitled to be advised and kept informed of the financial and educational circumstances of an adult child who seeks either themselves or through the parent to enforce ongoing support. As counsel noted if Mr. Wagg was to be called to continue supporting his daughter, he is entitled as of right to know about her financial circumstances and ongoing efforts. In this case he was not informed due to the estranged relationship.
[18] Mrs. Wagg was partially successful on both issues: the matter of spousal and child support. She sought however indefinite support. Mr. Wagg sought some assessment of her current circumstances, a possible reduction or an end if not now, in the future.
[19] In Orkin's The Law of Costs, 2nd ed., the exercise of discretion in awarding costs is discussed at page 2‑11:
The principles that should be observed in exercising discretion as to costs have been defined as follows. First, the principle of indemnity is of paramount consideration. Secondly, the courts must approach the matter on the basis that encourages settlement of all actions from the outset. Thirdly, the court must discourage actions and defenses which are frivolous. Fourthly, the court must discourage unnecessary steps in the litigation.
[20] The parties' conduct before and during the litigation process as well as the degrees of success achieved are relevant to the exercise of the court's discretion as to costs.
[21] The subject of costs has been discussed in Urquhart v. Urquhart, 169 N.S.R. (2nd) 134, 508 A.P.R. 134. The Honourable Justice Goodfellow commented that costs in matrimonial matters do not easily equate "with an amount involved". Where this is no clear amount involved, he adopted the cost each day of trial in the amount of $15,000.00.
[22] Counsel for Mrs. Wagg seeks solicitor and client costs to cover her billable costs to her client in the amount of $11,132.00 plus $1,209.74 in disbursements.
[23] Two days of discovery for Mrs. Wagg, three hours for Mr. Wagg plus a full day of trial on two issues appears an unreasonable amount of time particularly since despite the discovery, Mr. Wagg did not comply with proper disclosure fully or in a timely fashion.
[24] I order $4000.00 costs, together with disbursements including one‑half of the transcription costs for Verbatim.
Legere Sers, J.
February 5, 2009
Halifax, Nova Scotia