(FAMILY DIVISION)
Citation: Kozma v. Kozma, 2013 NSSC 20
Date: 20130115
Docket: 1201‑062330, SFHD‑056503
Registry: Halifax
Between:
Deborah Ann Kozma
Applicant/Petitioner
v.
Andrew Ferenc Kozma
Respondent
Judge: The Honourable Justice Beryl MacDonald
Written Submissions: November 23, 2012 from Deborah I. Conrad
December 19, 2012 from Andrew Kozma
Counsel: Deborah I. Conrad, counsel for the Applicant/Petitioner
Andrew Ferenc Kozma, self-represented
By the Court:
[1] On November 2, 2012 I provided a written decision in this matter which involved an application for a variation to a Corollary Relief Judgment. It is reported as Kozma v Kozma, 2012 NSSC 380. I invited the parties to provide written submissions if either requested a cost award. Both have now provided their written submissions. Ms. Kozma considers herself to be the successful litigant and requests costs based upon the Tariff C of the Costs and Fees schedule for a full day hearing multiplied by 4 because “ the application was determinative of the entire matter at issue in the proceeding”.
[2] Both Justice Gass in Hopkie v Hopkie, 2010 NSSC 345 and Justice Jollimore in MacLean v Boylan, 2011 NSSC 406 decided that hearings relating to applications in matrimonial matters are in reality “trials” and as such should be subject to Tariff “A” not Tariff “C”. I agree.
[3] Mr. Kozma requests that I refuse to grant a cost award because he has no ability to pay the award, and to do so would have an adverse impact on the child’s emotional or material well-being because it would affect his financial support of the child and may prevent his exercise of parenting time with her. The essence of his argument is that it costs money for him to exercise his parenting time and he may have to refuse parenting time because he cannot afford the transportation and other costs associated with his parenting time if this award is granted.
[4] Several principles emerge from an analysis of the Civil Procedure Rules and the case law about cost awards (Civil Procedure Rule 77, 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.). Those principles are:
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, impecuniosity of the parties, 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 or reduce a cost award to an otherwise successful party.
5. The amount of a party and party cost award should “represent a substantial contribution towards the reasonable expenses of presenting or defending the proceeding, but should not amount to a complete indemnity”.
6. The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award.
7. 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”.
8. 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 $20,000.00 in order to determine the “amount involved” .
9. If the award determined by the tariff does not represent a substantial contribution towards the 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.
10. 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.
[5] This proceeding began on November 14, 2011 when Ms. Kozma filed a variation application requesting a recalculation of child support based upon the formula provided in the Corollary Relief Judgment dated December 23, 2009. On December 12, 2011 Mr. Kozma filed a response to that application. He now wanted to vary the parenting provisions of the Judgment and pay either no child support or child support based upon a set off amount because of the parties “shared parenting” of the child.
[6] Ms. Kozma’s request was essentially to vary the child support paid by Mr. Kozma by applying the terms of the Corollary Relief Judgment to which he had consented. Mr. Kozma failed to satisfy me there was any change in the condition, means, needs or other circumstances of the child or the ability of the parents to meet the needs of the child that materially affected the child. Clearly Ms. Kozma was the successful party. This proceeding involved a conciliation meeting, two ½ day settlement conferences, a pre hearing conference and a one day hearing.
[7] Mr. Kozma’s annual confirmed 2011 income was $85,361.00. He expected his 2012 income would be similar. He has a partner who has a child who suffers from medical disabilities. However, he entered into that relationship knowing he had a child to support from his previous relationship. It was his choice to incur additional transportation expense. He moved away from the community in which the child and Ms. Kozma lived. The additional expense is not in any way extraordinary. None of the debt to be paid by Mr. Kozma arises as a result of the relationship between Mr. and Ms. Kozma. Mr. Kozma is not “impecunious”. He has ability to pay a cost award.
[8] The Scale 1 of Tariff “A”, using the $20,000.00 “amount involved” as a rule of thumb, would provide costs in the amount of $3,000.00. If the $2,000.00 is added for the one day hearing the total would be $5,000.00. I have been informed Ms. Kozma’s legal expenses including disbursements were approximately 10,800.00. The issues were not complex. Costs are awarded in the amount of $5,000.00.
[9] Because these costs resulted from an application to obtain child support they are to be made payable to Deborah Kozma and sent by Andrew Kozma to the Office of the Director of Maintenance Enforcement, P.O. Box 803, Halifax, Nova Scotia B3J 2V2. He is to pay, in addition to his monthly child support an additional amount $150.00 per month commencing February 1, 2013, in payment of this cost award until it has been paid in full.
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Beryl MacDonald, J.S.C.