SUPREME
COURT OF NOVA SCOTIA (FAMILY DIVISION)
Citation: Bowden v. Brinton, 2018 NSSC 57
ENDORSEMENT
Bernadette Bowden v. Dana Brinton
March 16, 2018
SFH-MCA 098671
• Lydia Billingsley for Bernadette Bowden
• Sean Smith for Dana Brinton
Mr. Brinton seeks costs of $5,500.00, based on Tariff A and a hearing of one-half day or, in the alternative, $1,500.00 under Tariff C.
Decision:
Bernadette Bowden shall pay Dana Brinton $1,250.00 in costs. Her payment shall be made when a decision is rendered in her application. If Ms. Bowden succeeds in her application, Mr. Brinton may offset this costs award against any costs he owes Ms. Bowden. If Ms. Bowden fails in her application, these costs shall be due forthwith and in addition to any other costs she may be ordered to pay Mr. Brinton. If her application does not proceed, this costs award must be paid within fourteen days of her Notice of Discontinuance being filed.
Reasons:
1.
Ms. Bowden applied to vary the terms of
a custody order on an interim basis. Her application was heard over one-half
day and was dismissed.
2.
Civil Procedure Rule 77.03(3) provides
that “Costs of a proceeding follow the result”. Costs
are in my discretion. A decision not to award costs must be principled.
3.
Civil Procedure Rule 77.02(1) states
that I “may, at any time, make any order about costs as [I am] satisfied will
do justice between the parties.”
4.
Ms. Bowden argues that I should consider
her financial circumstances and how a costs award might impact the child who is
the focus of this variation application. I believe this can be done by
postponing the payment of a costs award until the conclusion of the hearing.
If Ms. Bowden is successful ultimately, this award may be offset against costs
owed to her. If Ms. Bowden is not successful, she will have had time to
prepare her finances for the payment of this award (and any other which might
follow).
5.
Having regard to Tariff C, where the
application was heard in a brief period, and on the basis of affidavits and
cross-examination, I order Ms. Bowden to pay Mr. Brinton costs of $1,500.00,
which I reduce by $250.00 to reflect Mr. Brinton’s late filing of his
materials, so that Ms. Bowden owes $1,250.00. This amount is inclusive of all
disbursements.
6.
Mr. Brinton was present at the pre-trial
conference when deadlines were set for filing materials. His materials were
filed late. Costs awards serve to discourage behaviour. I have reduced the
amount of costs awarded to Mr. Brinton by $250.00 to reflect his late filing.
7. Ms. Bowden’s payment shall be made when a decision is rendered in her application. If Ms. Bowden succeeds in her application, Mr. Brinton may offset this costs award against any costs he owes Ms. Bowden. If Ms. Bowden fails in her application, these costs shall be due forthwith and in addition to any other costs she is ordered to pay Mr. Brinton. If her application does not proceed, this costs award must be paid within fourteen days of her Notice of Discontinuance being filed.
_____________________________
Elizabeth
Jollimore, J.S.C.(F.D.)