Supreme Court

Supreme Court of Nova Scotia

(FAMILY DIVISION)

Citation: A.N. v. J.Z., 2019 NSSC 38

Date: 20190204

Docket: Hfx No. 1201-070017

SFHD-103542

Registry: Halifax

Between:

A.N.

Petitioner

v.

J.Z.

Respondent

SUPREME COURT OF Nova Scotia

FAMILY DIVISION

Citation: A.N. v. J.Z., 2019 NSSC 38

Date: 20190204

Docket: Hfx No. 1201-070017

SFHD-103542

Registry: Halifax

Between:

A.N.

Petitioner

v.

J.Z.

Respondent

By the Court:

[1]              The parties were before the Court for a three-day divorce hearing in April 2018; the decision was reported as A.N. v. J.Z., 2018 NSSC 146. Subsequently, the parties were unable to agree on the matter of costs; they filed submissions and returned for a brief contested hearing on December 4, 2018. I reserved my decision but did indicate I was in agreement with the Respondent’s position that if costs were to be imposed, I should not include in my analysis any consideration of the parties’ 2017 post-interim hearing disagreement about the form of the Interim Order. (I took that view given the wording of Justice Chiasson’s Interim Order dated March 17, 2017, which stated (in part): “The parties shall bear their own costs in relation to this interim hearing.”)

[2]              Should costs be imposed, and if so, should they be calculated pursuant to Civil Procedure Rule 77 by application of the appropriate tariff or in a lump sum amount? By way of background, there were four broad categories of relief considered at trial: parenting, child support, division of property, and spousal support. Within each of those categories, there were two distinct issues to be determined. The Petitioner was successful on all issues in each category, and the Court’s decision exceeded settlement proposals made by the Petitioner prior to trial.

[3]              The Petitioner now seeks a lump sum award of costs per Rule 77.08 on the basis that the tariff is difficult to apply in this case, and because the result of the trial and the conduct of the Respondent justify an amount closer to the legal fees incurred. The Petitioner provided evidence of having incurred fees (inclusive of disbursements) in excess of $66,000 over the life of the litigation. The Petitioner asks the Court to award $45,000 in costs.

[4]              The Respondent argues that each party should bear their own costs. The Respondent maintains the notion of an award to the “successful” party is tempered in the sense that parenting was the issue that consumed the majority of the trial time, and both parties had reasonable positions on a genuine issue to be tried. In addition, the Respondent claims a deterioration in financial position since trial due to becoming unemployed.

[5]              There are a number of principles that apply in determining costs, as set out in Fermin v. Yang, 2009 NSSC 222 and Armoyan v. Armoyan, 2013 NSCA 136. I have considered those principles within the over-riding context of Rule 77.02 that an award of costs is ultimately within the discretion of the Court and must do justice as between the parties.

[6]              The assessment of costs concerning these parties must consider that failure to fully disclose financial information impacts the assessment of costs in family law litigation (Boylan v. MacLean, 2018 NSSC 115; Bruce v. Ramey, 2017 NSSC 60; Gouthro v. Gouthro, 2018 NSSC 21). The Respondent litigated until five weeks prior to trial before providing complete disclosure and information regarding a line of credit with a significant balance, which information was important in relation to issues of division of matrimonial property. Nonetheless the Petitioner had made a comprehensive offer to settle (December, 2017) which was less in respect of every head of relief than that which was awarded to the Petitioner at trial. A day after the very late disclosure was received (March, 2018), the Petitioner again made a comprehensive settlement offer, and again eventually fared better at trial.

[7]              Where there is a substantial non-monetary issue - here, custody - the complexity of the proceeding and importance of the issues are factors to be taken into account (Barkhouse-Pace v. Pace, 2017 NSSC 350). The custody issue, which consumed the greater portion of trial time, is difficult to quantify in terms of identifying a dollar amount so as to apply an appropriate tariff. In addition, the conduct of the Respondent’s case increased the length and complexity of the trial. One example of this was the Petitioner’s need to conduct a lengthy examination of the child’s treating physician, owing to the Respondent’s intense scrutiny and criticisms of the Petitioner’s day-to-day management of the child’s medical condition.

[8]              I am satisfied the Respondent’s overall approach to the litigation required additional steps and effort on the part of the Petitioner and increased the Petitioner’s costs, which justifies a “substantial contribution” toward them by the Respondent (Chipman v. Chipman, 2017 NSSC 293).

[9]              With the exception of a submission that the Respondent has been unemployed since mid-October 2018, I do not have any evidence upon which, or substantive reason to deny costs to the Petitioner on the basis of the Respondent’s financial position or present ability to pay a costs award.

[10]         I am not persuaded by the Respondent’s argument that there was a genuine issue to be tried concerning the parenting plan that could only have been resolved by a trial. Rather, there was nothing, down to the most minute or routine of details concerning the parties’ child, that was agreed upon without adjudication, except that there should be a joint custodial designation. The Respondent challenged every aspect of the Petitioner’s parenting, and yet unrealistically argued for shared parenting contrary to the numerous precedent cases in this jurisdiction that discuss the need for an integrated and cooperative approach in shared parenting.

[11]         Parties do indeed have a right to a hearing to determine what parenting arrangements are in the best interests of a child (McNeil v. Christie, 2017 NSSC 247). That said, such a right must be balanced against a recognition that costs are intended to promote the rational conduct of litigation.  As stated in Ibrahim v. Murphy 2017 NSSC 264:

[10]      The potential for an adverse cost award is a reality that is expected to encourage parents to be more objective about their child’s needs. Parents are to separate their own needs from those of the child. Sometimes this may require a parent to recognize the child can be adequately parented by the other parent and that his or her preferred plan is not practical or desirable for the child.

[11]         It is always in the child’s best interest for the child’s parents not to engage in litigation. Anger, pride, a desire to win, jealousy, resentment, or dislike of the other parent may prevent a parent from objectively viewing the child’s situation. Why should every parent in such circumstances, who cannot agree with the other parent about parenting issues, bring his or her issues in the court and expect to be relieved from an obligation to compensate the successful parent?

[12]         While I am persuaded this is an appropriate case to order lump sum costs, I recognize the award must not “sanction” the Respondent beyond the boundaries of that which I have discussed, and cannot create a windfall to the Petitioner, as cost awards are not meant to act as indemnification to a party for legal fees incurred. I am satisfied that in this case a balancing of all the relevant considerations requires an order for a lump sum award of $30,000 costs, inclusive of disbursements, payable by the Respondent to the Petitioner no later than June 4, 2019.

                          Beaton, J.