(FAMILY DIVISION)
Citation: Churchill v. Kennedy, 2009 NSSC 188
Date: 20090615
Docket: SFHMCA-046782
Registry: Halifax
Between:
John Allen Churchill
Applicant
v.
Heather Cecilia Kennedy
Respondent
Judge: The Honourable Justice Deborah Gass
Heard: May 5, 6, 7, 13 and 14, 2009, in Halifax, Nova Scotia
Counsel: Vanessa L. Tynes, for the applicant
B. Lynn Reierson, Q.C., for the respondent
By the Court:
[1] This is an application for costs. Each party seeks costs against the other of $15,000.00.
[2] The trial, which should have taken no more than one day, consumed instead four days.
[3] It is argued by the respondent that the relative financial circumstances of the parties is a factor to be considered in awarding costs. The respondent also argues that there is an element of deterrence in a decision on costs.
[4] While the former is supported by case law, as found in Grant v. Grant, 2002 N.S.S.F. 2, quoting from the decision of the Nova Scotia Court of Appeal in Nolet v. Nolet (1985), 68 N.S.R.(2d) 370, the deterrence consideration must be limited to the most blatant and vexatious of circumstances. Those costs would be punitive in nature and care must be taken to ensure that parties are not precluded from bringing future legitimate applications by imposing deterrent costs unless the circumstances are abundantly clear that costs which are essentially punitive are warranted.
[5] There is no question that the assertions of the applicant compelled the respondent to defend her position, but both parties bear some responsibility for the length of this matter where the issues were so narrow. The matter began in February, 2008 and an Interim Consent Order was issued in April, 2008, in which Mr. Churchill had evening access and alternating weekends.
[6] The difference in the parties’ positions coming in to the trial was that the respondent wanted the applicant to have the alternating weekends and two evenings per week; the applicant wanted two overnights mid-week and every second weekend with flexibility on times.
[7] The resulting order provided for the father’s parenting time to be one fixed overnight per week and alternating weekends from Friday at 4:00 pm until Monday morning.
[8] While the success as between the parties was mixed, considerable unnecessary time was spent on assertions that served only to prolong the proceedings, and bore little relevance to the different positions of the parties. This decision was limited to fixing parenting time somewhere between either something closer to shared parenting, or more restrictive access, yet issues raised were more inflammatory and not necessarily helpful to the court.
[9] The applicant, in the court’s view, sought a degree of flexibility that was untenable, and not in the child’s or the parties’ best interests. The mother was, however, prepared to accommodate some of that request for flexibility. The court concluded that this child was already too much the subject of continuous negotiation and some certainty would hopefully minimize what seemed to be a regular “diet of dickering”.
[10] While the actual amount of parenting time granted to the applicant is more than he had and more than she offered, the aggravation of haggling over times and the frequency of exchanges (which increases potential for conflict) are hopefully eliminated, or at least reduced.
[11] This, taken together with the relative circumstances of the parties, and assertions which really had little bearing on the outcome, but which prolonged the proceedings, warrant the court awarding some costs in favour of the respondent.
[12] The applicant’s assertions regarding the respondent’s conduct did result in findings which were more favourable to the respondent.
[13] Having said that, the result was one of mixed success, which has the effect of reducing an award of costs which might otherwise be made under these circumstances.
[14] Thus, I order that the applicant pay to the respondent costs in the amount of $10,000.00.
J.