SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: N.D.L. v. M.S.L., 2010 NSSC 159
Date: 20100420
Docket: 1201-063512, SFHD-063948
Registry: Halifax
Between:
L. ( N. D.)
Petitioner
v.
L. ( M. S. )
Respondent
Judge: The Honourable Justice Beryl MacDonald
Heard: January 21, 22, 28, 2010, in Halifax, Nova Scotia
Written Decision
on Costs: April 20, 2010
Counsel: William Leahey, counsel for the Applicant
Ritchie Wheeler, counsel for the Respondent
By the Court:
[1] On February 26, 2010 I delivered a written decision in which the wife was permitted to move with the child to Missouri, United States of America. I granted specific access to the husband upon certain conditions outlined in that decision. I ordered the husband to pay child support pursuant to the child support guidelines. The wife is now seeking her costs in these proceedings.
[2] I have reviewed the Civil Procedure Rules and several decisions commenting on costs, including 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.) .
[3] Several principles emerge from the Rules and the case law:
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 a 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 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 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.
[4] The primary issues involved in this proceeding related to the parenting plan and there is no amount involved that can easily be teased out of the results at trial. Counsel for the wife has requested a cost award of $ 11,477.39, $3,477.39 of which are disbursements. I have not received any submissions from counsel for the husband. There were no offers exchanged between the parties. The husband would appear to have limited ability to pay a cost award. I have taken into consideration the fact that mobility cases are extremely difficult to settle because one of the parents will lose significant parenting time and his or her relationship with the child may be fundamentally altered. Therefore proceeding to trial cannot be viewed as “unreasonable”. Nevertheless the wife was the successful party and there is no principled reason why she should be denied costs. I accept that all of the disbursement costs were reasonably incurred and should be reimbursed. Using the “rule of thumb” by equating each day of trial to an amount of $20,000 the “amount involved” would be $60,000.00 and the basic tariff would be $5,375.00. The Scale 1 tariff is $3,225.00 and although the wife’s legal costs considerably exceed this amount, after taking all factors into consideration, this is an appropriate award. The wife shall have a total cost award of $6,703.00.
_______________________________
Beryl MacDonald, J.