SUPREME COURT OF Nova Scotia
Citation: Doyle v Doyle, 2018 NSSC 34
Date: 2018-02-21
Docket: 1204-006310
Registry: Kentville
Between:
Charlene Dianne Doyle
Petitioner
v.
Perry Rodger Doyle
Respondent
|
Judge: |
The Honourable Justice Gregory M. Warner |
|
Heard: |
November 28, 29 and 30, 2017, in Kentville, Nova Scotia with an oral decision on December 22, 2017, in Kentville, Nova Scotia |
|
Final Written Submissions: |
January 25, 2018 |
|
|
|
|
Counsel: |
Heidi Foshay Kimball, counsel for the petitioner Debbi Bowes, counsel for the respondent |
By the Court:
[1] This is a costs decision.
Background
[2] The Doyles had been together since they were teens. They married in 2006. He was a paramedic; she is a nurse. They have two sons born 2009 and 2011.
[3] While working as a flight paramedic in Northern Canada, Mr. Doyle was involved in tragedies that have caused him to suffer from severe depression and PTSD, which persist to the present time. He has not worked since 2013 and is on “100% total permanent disability” under the North-West Territories Workers’ Compensation Plan.
[4] In 2014, Ms. Doyle obtained a senior position in the Kentville Hospital system and the family moved.
[5] Manifestation of Mr. Doyle’s serious health issues lead to their separation in October 2015. Ms. Doyle obtained an EPO at the time. She retained de facto primary care of their children pending an interim custody hearing, which was held over two days in December 2015, and then adjourned, based on the non-availability of Mr. Doyle’s psychologist, until January 2016 when an interim access order was made granting Mr. Doyle access.
[6] Before the order was issued, late one night in February 2016, a drunk Mr. Doyle went to the Doyle’s matrimonial home. When he was refused entrance, he set fire to the travel trailer in the yard. He was arrested, held on remand, eventually pled guilty to mischief and harassment, and sentenced to a period of incarceration. Because of this event, he (through his second lawyer) consented to the suspension of the access granted in the interim proceedings.
[7] Eventually, in December 2016, he started exercising supervised access at the Apple Tree Landing for one hour per week, pursuant to the Supervised Access and Exchange Program (the “SAE Program”).
[8] In May 2017, this matter was set down for trial and heard on November 28, 29 and 30, 2017. An oral decision was rendered December 22, 2017.
[9] At the trial, primary care to Ms. Doyle was not in issue. The parties’ position changed between their pre-trial and post-trial submissions, but basically Ms. Doyle was seeking that access to their two sons continue under the SAE Program for an indefinite period; Mr. Doyle was seeking supervised access in his home, together with the ability to attend some of their children’s activities as soon as possible.
[10] A second issue was the determination of both ss. 3 and 7 child support, on a retroactive and prospective basis. Mr. Doyle had been paying child support in accordance with the Interim Order and had voluntarily increased the quantum. The determination of the gross up of his tax-free Workers’ Compensation income was an issue. An allocation of the portion of the Canada Disability Pension attributable to the children was in issue.
[11] Finally, the parties were unable to agree what was included in divisible matrimonial assets or their value.
Submissions
Mr. Doyle’s January 9, 2018 submission
[12] In Mr. Doyle’s written submissions, he sought costs of $2,000.00 for four reasons:
1. He was mostly successful in the property issue; that is, what was included and excluded from division, valuation of personal property assets based on appraisal evidence produced by him at trial, and the amount of the equalization payment.
2. Ms. Doyle was unsuccessful in advancing claims that his truck, purchased in 2014 (and the accompanying debt) were not matrimonial asset, or that a snow mobile and trailer were matrimonial assets.
3. While Ms. Doyle was partially successful in the terms of the supervised access, her submissions were only made after the trial, and the court ordered a review date with a mechanism to monitor the progress and avoid stone walling.
4. Ms. Doyle spent much time at the beginning of the trial giving history that predated the interim hearing and added little to the issues to be decided.
[13] Counsel submitted:
This three-day trial represented a colossal failure of counsel to serve their clients. The parties’ positions were not that far apart and should have been resolved. The Respondent’s position is that the Petitioner was intent on having a hearing and was uncooperative in trying to negotiate or organize the trial for resolution.
Ms. Doyle’s January 25, 2018 submission
[14] Ms. Doyle’s brief recounts the history of the proceedings between the parties and notes that Mr. Doyle had three counsel represent him at various times since the October 2015 separation (Mr. Burton for the interim parenting hearing; then Mr. MacKenzie; and, for the trial, Ms. Bowes).
[15] Ms. Doyle assigns responsibility for the failure to resolve the matter before trial to Mr. Doyle’s various counsel’s non-response to her various proposals.
[16] She cites CPR 77 and Justice MacDonald’s summary in 12 points of the application of CPR 77 in L(ND) v L(MS) (“L(ND) v L(MS)”), 2010 NSSC 159.
[17] Ms. Doyle submits that:
1. the court largely adopted her proposed continuation of the SAE Program;
2. a lot of time and evidence was spent on the property issues, which should have been minor issues; and
3. she made an Offer to Settle on November 21, 2017, one week before the trial. She says the SAE Program proposal was contained in her November 21st offer, which offer was not acknowledged before trial.
[18] Ms. Doyle denies that she was intent on a having a hearing or that she was against participating in negotiations. She submits that Mr. Doyle’s unreasonable position regarding supervised access, together with various pre-trial delays while he changed lawyers over two years, hindered any resolution or narrowing of the issues for trial.
[19] Ms. Doyle submits that she should be awarded costs based on Tariff A. For the determination of “amount involved”, she says the monetary issue involved about $75,000.00 plus the very important non-monetary issue of supervised access.
[20] With respect to the appropriate scale, she said the proceeding was complex and should merits costs on the top scale (Scale 3).
[21] She submits that the total amount that the court ordered be paid to Ms. Doyle was about $8,800.00. Under Tariff A, Scale 3, she notes that for an award of under $25,000.00, costs are $5,000.00 plus $2,000.00 per day (for three days) for a total of $11,000.00.
Mr. Doyle’s January 26, 2017 reply
[22] Mr. Doyle’s trial counsel obtained access to Mr. Doyle’s file from his second lawyer after the trial.
[23] From a review of the file, she takes issue with Ms. Doyle’s version of the exchanges between counsel, including the following:
1. Mr. Doyle was successful in the interim hearing, not Ms. Doyle.
2. Mr. Doyle’s then counsel, Mr. MacKenzie, rejected Ms. Doyle’s 2016 proposed property division on the basis that appraisals were needed, it was unreasonable to exclude from the property division Ms. Doyle’s pension entitlements, and it was unreasonable for Ms. Doyle to exclude from division the truck and truck loan, acquired in 2014 - long before their separation.
[24] Mr. Doyle’s counsel further notes that Ms. Doyle’s settlement offer, sent to her at 5:03 p.m. on November 21, 2017, was expressly only open for acceptance until 5:00 p.m. on November 22, 2017, and that it included:
1. a retroactive child support claim of $15,202.00, which Ms. Doyle was unsuccessful in getting at trial;
2. an equalization payment of $21,772.00, with no supporting chart of summary; and
3. exclusion of Ms. Doyle’s pension entitlements.
Counsel submits this was an unreasonable offer and it was only open for acceptance for 24 hours, facts not identified in Ms. Doyle’s costs submission.
[25] Finally, counsel submits that Ms. Doyle’s pre-trial brief requested that supervised access under the SAE Program continue “for an indefinite” period. The first offer to make access pursuant to the SAE Program transitional was in her post-trial submission.
Summary of Court’s December 22, 2017 oral decision
[26] The first issue was Mr. Doyle’s access to their two sons.
[27] The court determined, mostly in accordance with Ms. Doyle’s post-trial submissions, that despite Mr. Doyle’s obvious affection for their sons, by reason of the long period when Mr. Doyle had no access to them and his ongoing participation in counselling, the SAE Program should continue. However, the court agreed with Mr. Doyle’s submission that this should be a transitional process and not for an indefinite period. The court outlined how it expected Mr. Doyle’s access would increase and be encouraged, including his attendance at some of their activities, which would lead to a review hearing, if necessary, by March 31, 2018.
[28] The court calculated the grossed-up equivalent of Mr. Doyle’s tax-free income and calculated child support on a go-forward basis, with a retroactive calculation of his s. 7 child support obligations. The court did not grant retroactive basic child support in the amount of $15,000.00.
[29] The court disallowed many of the activities for which s. 7 expenses were claimed, but ordered contribution to some s. 7 expenses on a go-forward basis.
[30] With respect to the property issues, Mr. Doyle was substantially successful. Before trial, Ms. Doyle sought to exclude her employment pensions from division as well as the truck and associated loan, purchased by Mr. Doyle while they lived in the North-West Territories - before they moved to Nova Scotia. The cross-examination of Mr. Doyle’s appraisers largely confirmed his values.
[31] In her pre-trial brief, Ms. Doyle sought an equalization payment of $31,000.00 and, in her post-trial brief, an equalization payment of $25,000.00. In both his pre-trial and post-trial briefs, Mr. Doyle advocated for an equalization payment by him to Ms. Doyle of about $8,000.00.
[32] The court’s decision required that Mr. Doyle make an equalization payment of about $8,800.00 - consistent with Mr. Doyle’s position.
Analysis
[33] Civil Procedure Rule 77 applies in respect of cost awards in family matters. This court agrees with the analysis of Justice MacDonald in L(ND) v L(MS) supra. CPR 77.02 provides that a judge may make an order about costs which a judge is satisfied will do justice between the parties. The starting point for an analysis is usually that the successful party receives costs.
[34] There was no clear winner in this litigation.
[35] Mr. Doyle, who suffers from depression and PTSD, as well as other physical ailments relating to alcoholism and diabetes, clearly loves their sons and tries to be a good parent, but the court was concerned that his request for immediate supervised access (by friends) was premature. He failed to recognize the extent to which his mental health impacts Ms. Doyle’s and the court’s assessment of the risks to their children.
[36] The court’s analysis largely followed Ms. Doyle’s post-trial proposal but added provisions to encourage a progression from the present infrequent and stilted access to a more natural and extensive access. On this issue, Ms. Doyle was more successful.
[37] Regarding the retroactive child support claim, Mr. Doyle was completely successful. The prospective child support was not a real issue at trial; both agreed to grossing up Mr. Doyle’s income.
[38] With respect to the valuation of disputed assets and exclusion or inclusion of assets in the matrimonial pot, Mr. Doyle was largely successful.
[39] Clearly, there was no winner in these proceedings.
[40] Counsel for the parties have widely divergent views on why the divorce issues were not resolved before trial. Based on the written submissions, the court is unable to point a finger to only one party as being the cause.
[41] While the money issues ended up consuming more time than they should have, the primary issue of concern to the parties and the court was the nature of Dad’s access to their sons.
[42] The starting point for the costs analysis following a divorce trial is Tariff A. This trial was not more complex than other contested divorce trials; therefore, Scale 2 (basic) applies.
[43] The “amount involved” has to consider both the non-monetary issue and the two monetary issues. If one party had been largely successful, Tariff A would suggest an award of $6,250.00 plus $6,000.00 (three days at $2,000.00).
[44] The tariff does not override the responsibility to consider the factors in CPR 77.07, and award a lump sum (CPR 77.08) if that will do justice between the parties.
[45] There was no successful party, but Ms. Doyle was primarily successful in the issue of most concern to the court. For that reason, she should be awarded costs. Because she was not successful on the monetary issues, it is not appropriate that the full amount claimed pursuant to Tariff A be awarded.
[46] Instead, the court awards a lump sum in favour of Ms. Doyle in the amount of $4,000.00.
Warner, J.