SUPREME
COURT OF NOVA SCOTIA (FAMILY DIVISION)
Citation: Barkhouse-Pace v. Pace,
2017 NSSC 350
ENDORSEMENT
Roberta Barkhouse-Pace v. Duane
Pace
1201-063997; SFH-D 0066815
September 15, 2017
• Nicole MacIsaac for Roberta Barkhouse-Pace
• Beth Newton for Duane Pace
Duane Pace requests costs of $5,000.00 following a one-day hearing on an application relating to a Corollary Relief Order negotiated at a settlement conference. Roberta Barkhouse-Pace asks that no costs be awarded or that they be awarded based on Tariff C.
Decision:
Ms. Barkhouse-Pace shall pay Mr. Pace costs of $4,500.00.
Reasons:
1.
Ms. Barkhouse-Pace applied to vary the
terms of a Corollary Relief Order which was negotiated at a judicial settlement
conference, or to void the Order based on common mistake or unilateral mistake,
or to set aside the Order under section 29 of the Matrimonial Property Act.
Her application was dismissed.
2.
The hearing required more than one-half
day and less than one full day. There were two earlier conferences before me.
3.
Following the granting of the Corollary
Relief Order, the parties returned to Justice Williams who was unable to assist
in the absence of jurisdiction.
4.
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.
5.
Costs promote the rational conduct of
litigation. They discourage parties from pursuing cases which are unlikely to
succeed.
6.
Ms. Barkhouse-Pace argues that she ought
not be ordered to pay costs because she is of limited means. She receives
social assistance payments and has counsel retained through Nova Scotia Legal
Aid.
7.
Ms. Barkhouse-Pace is entitled to a
payout of $75,000.00 from Mr. Pace’s pension which, when received, could
finance a costs award.
8.
Representation by Legal Aid counsel does
not immunize a party against an order for costs. This can only be done by an
order granted on a motion under Rule 77.04.
9.
Ms. Barkhouse-Pace has not sought or
been granted an order under Rule 77.04.
10.
Judge Dyer reminds me, in M.C.Q. [sic
M.Q.C.] v. P.L.T., 2005 NSFC 27 (CanLII):
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”. If this happens, Judge Dyer
said, “Fairness may dictate that the successful party’s recovery of costs not
be thwarted by later pleas of inability to pay. [See A.E.M. v. R.G.L.,
2004 BCSC 65 (CanLII)]”.
11.
Ms. Barkhouse-Pace argues that the
appropriate Tariff to apply is Tariff C.
12.
I apply Tariff A as is the practice in
the Family Division: Armoyan, 2013 NSCA 136 at paragraph 20.
13.
To apply Tariff A, I must know the
amount involved in the case. Where there’s a substantial non-monetary
issue involved, the amount involved is determined having regard to the
complexity of the proceeding and the importance of the issues.
14. In both Collins v. Speight, 1993 CanLII 4668 (NS SC), and in Wyatt v. Franklin, 1993 CanLII 4580 (NS SC), Justice Goodfellow concluded that the amount involved in two and one-half day trials was $45,000.00. Collins v. Speight, 1993 CanLII 4668 (NS SC), was a case involving a dispute over an entitlement to a right of way and Wyatt v. Franklin, 1993 CanLII 4580 (NS SC), was a land dispute. Justice Goodfellow described both as not complex. Later, in Toronto Dominion Bank v. Lienaux, 1997 CanLII 15017 (NS SC), Justice Goodfellow suggested a general rule for cases where a substantial non-monetary issue was involved. He said that he treated each day or part day of the trial as equivalent to $15,000.00 for determining the “amount involved”.
15.
Justice Lynch reviewed this general rule
in Jachimowicz, 2007 NSSC 303 (CanLII),
at paragraph 26, where a parenting trial took approximately thirteen
days. She adjusted the daily equivalent amount from $15,000.00 to
$20,000.00 “to reflect the increased costs of litigation”.
16.
Mr. Pace did not file an affidavit,
reducing his legal expense.
17.
Mr. Pace was faced with the need to
respond to a subpoena issued for his previous lawyer. While the hearing
date was set seven months ago, the subpoena was only served in the week
before the trial date.
18.
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”.
19.
Pursuant to Civil Procedure Rule
77.02(2) I have a general discretion to award costs so as to do justice between
the parties, regardless of whether costs have been specifically claimed.
20.
Having regard to the result achieved,
the amount deemed to be involved, and the duration of the hearing, I order Ms. Barkhouse-Pace
to pay Mr. Pace costs of $4,500.00.
_____________________________
Elizabeth
Jollimore, J.S.C.(F.D.)