(FAMILY DIVISION)
Citation: Calnen v. Gamble, 2009 NSSC 337
Date: 20091117
Docket: 1201-062342
Registry: Halifax
Between:
Charlotte Ann Calnen
Petitioner
v.
David Andrew Gamble
Respondent
Judge: The Honourable Justice Deborah Gass
Heard: June 8 & 9, 2009, in Halifax, Nova Scotia
Counsel: LouAnn Chiasson, for the petitioner
Philip Whitehead, for the respondent
By the Court:
[1] This is an application for costs. I will not review the case law and the rules respecting costs as they have been outlined by counsel in their briefs.
[2] Costs are in the discretion of the court. The general rule is that successful litigants are entitled to costs. Costs in family matters are more difficult, particularly where there are often many issues to be decided, only some of which are monetary in nature.
[3] This is one such case. The matter involved a number of issues, most importantly those relating to the parenting of this couple’s children. At the outset of the trial, there were some issues agreed upon.
[4] Those in dispute were: parenting time, in that the respondent sought shared parenting; the inclusion of a CRA debt as a matrimonial debt to be divided; determination of the father’s income; effective date of the order; and s. 7 expenses.
[5] Disclosure was problematic. The determination of income was very difficult, based on the evidence.
[6] There were a number of pre-trial proceedings, including an emergency interim hearing.
[7] While it is correct that the petitioner was not wholly successful, I would conclude that she was substantially successful in the final outcome.
[8] The court did not grant shared parenting as sought by the respondent, although overnight access every second Thursday was ordered.
[9] While the petitioner asked for income to be imputed at $49,300.00, the respondent’s evidence suggested his income was only $15,000.00 - $17,000.00.
[10] The court imputed income of $40,000.00. It was revealed in the costs submissions that this was close to the amount ($42,000.00) offered by the respondent in a settlement proposal (resulting in a $27/month difference in the table).
[11] The court dismissed the respondent’s application to vary the parties’ partial separation agreement to include the CRA debt.
[12] The court granted a retroactive variation of child support, but denied the s. 7 application.
[13] Thus, the petitioner’s motion for costs is granted, in part. Costs of $5,000.00 are awarded to the petitioner.
J.