S.F.H. No. 1201‑54602 (D‑005492)
IN THE SUPREME COURT OF NOVA SCOTIA
FAMILY DIVISION
BETWEEN: ROMEO TITEL VOICULESCU ‑ PETITIONER
‑AND-
VIVIAN REITA VOICULESCU ‑ RESPONDENT
DECISION
(with respect to costs)
2003‑NSSF‑046
HEARD: BY THE HONOURABLE JUSTICE LESLIE J. DELLAPINNA ON MARCH 21, 2002; DECEMBER 20, 2002
LAST WRITTEN POST‑TRIAL
SUBMISSION: MAY 7, 2003
TRIAL DECISION: JUNE 27, 2003
LAST SUBMISSIONS RE
COSTS RECEIVED: SEPTEMBER 12, 2003
DECISION: NOVEMBER 5, 2003
COUNSEL: SELF REPRESENTED‑ PETITIONER
JAMES MORRIS
‑ RESPONDENT
DELLAPINNA, J.:
This is an application for costs by the Petitioner in relation to a divorce proceeding which was heard over a day and a half concluding on December 20, 2002. Written submissions were then accepted by both parties, the last of which was received on or about May 7, 2003. The Court's written decision was released on June 27, 2003. The Petitioner now seeks costs. He contends that he was the successful party. It is also his position that the Respondent intentionally prolonged the proceedings in order to gain a financial advantage (for example by collecting rents during the months that passed from the commencement of the trial to its conclusion), that the Respondent failed to provide financial information in a timely manner, that she failed to provide full financial disclosure and by adopting an unreasonable position.
Mr. Voiculescu seeks costs of over $45,000.00. He, however, has confused costs as contemplated by the Civil Procedure Rules with additional relief that he was seeking pursuant to the Matrimonial Property Act.
It is the Respondent's position that success at trial was split. The Respondent acknowledges that while she was unsuccessful in obtaining an unequal division of assets in her favor, neither was Mr. Voiculescu successful in obtaining all that he sought. For example, he sought 50 percent of the proceeds advanced after a mortgage refinancing which funds he contended were misappropriated by Mrs. Voiculescu.
The Respondent denies that there was any intention to prolong the proceedings, and the delays occurred as a result of Ms. Voiculescu's age and ill health and also the ill health of Mr. Voiculescu's previous solicitor. She denies any misconduct and felt her position, although not accepted by the Court, was not unreasonable.
Finally, the Respondent argues that she has no means by which to pay an order for costs and because of her declining health her financial circumstances are likely only to worsen.
I do not intend to repeat all of the facts. They are contained in the Court's prior decision dated June 27, 2003. The issues in the divorce proceedings included how the various assets and debts of the parties would be divided between them and what spousal support, if any, should Mr. Voiculescu pay to Ms. Voiculescu. Ms. Voiculescu was seeking an unequal division of the various assets and debts in her favor (a 70 percent/30 percent split) and was also seeking spousal support. It was ordered that the net equity in the former matrimonial home would be shared equally by the parties. Ms. Voiculescu's claim for spousal support was dismissed. There were no interim proceedings. The trial was, however, preceded by an organizational pretrial and a settlement conference.
No formal offers to settle were exchanged.
The Civil Procedure Rules include the following provisions relating to costs:
57.27
"(1) Where the proceeding is for a divorce or matrimonial cause, the court may from time to time make such order as it thinks fit against a party for payment or security for the costs of the other of such parties.
(2) The costs of a matrimonial cause shall be recovered in the same way as in an ordinary proceeding.
63.02
(1) Notwithstanding the provisions of rules 63.03 to 63.15, the costs of any party, the amount thereof, the party by whom, or the fund or estate or portion of an estate out of which they are to be paid, are in the discretion of the court, and the court may,
(a) award a gross sum in lieu of, or in addition to any taxed costs;
(b) allow a percentage of the taxed costs, or allow taxed costs from or up to a specific stage of a proceeding;
(c) direct whether or not any costs are to be set off.
(2) The court in exercising its discretion as to costs may take into account,
(a) any payment into court and the amount of the payment;
(b) any offer of contribution.
(3) The court may deal with costs at any stage of a proceeding.
63.03
(1) Unless the court otherwise orders, the costs of a proceeding, or of any issue of fact or law therein, shall follow the event.
63.04
(1) Subject to rules 63.06 and 63.10, unless the court otherwise orders, the costs between parties shall be fixed by the court in accordance with the Tariffs and, in such cases, the "amount involved" shall be determined, for the purpose of the Tariffs, by the court.
(2) In fixing costs, the court may also consider
(a) the amount claimed;
(b) the apportionment of liability;
(c) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding;
(d) the manner in which the proceeding was conducted;
(e) any step in the proceeding which was improper, vexatious, prolix or unnecessary;
(f) any step in the proceeding which was taken through over‑caution, negligence or mistake;
(g) the neglect or refusal of any party to make an admission which should have been made;
(h) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence;
(i) whether two or more plaintiffs, represented by the same solicitor, initiated separate actions unnecessarily; and
(j) any other matter relevant to the question of costs.
70.03(3)
Where any matter of practice or procedure is not governed by statute or by this Rule, the other rules and forms relating to civil proceedings shall apply with any necessary modification."
Rule 70 contains no provision relating to costs.
Subject to Rule 63.06 and 63.10, unless the Court otherwise orders costs between parties shall be fixed by the Court in accordance with the Tariffs and the "amount involved" shall be determined for the purpose of the Tariffs by the Court. The Tariffs provide as follows:
In these Tariffs the "amount involved" shall be:
(a) Where the main issue is a monetary claim which is allowed in whole or in part, amount determined having regard to:
i. the amount allowed,
ii. the complexity of the proceeding, and
iii. the importance of the issues.
(b) Where the main issue is a monetary claim which is dismissed, an amount determined having regard to:
i. the amount of damages provisionally
ii. the amount claimed, if any,
iii. the complexity of the proceeding, and
iv the importance of the issues;
(c) where there is a substantial non‑monetary issue involved and whether or not the proceeding is contested, an amount determined having regard to:
i. the complexity of the proceeding, and
ii. the importance of the issues;
(d) an amount agreed upon by the parties.
Costs are in the discretion of the trial judge. In Bennett v. Bennett (1981), 45 N.S.R. (2d) (T.D.) Hallett, J. (as he then was) stated:
"It is normal practice that a successful party is entitled to costs and should not be deprived of costs except for a very good reason ... (at para. 9)
While it can fairly be said that the general rule that costs will follow the event is not strictly followed in family law, there must be a good reason not to award costs to a successful party in a matrimonial cause.
In the present case while Mr. Voiculescu was not successful in obtaining all of the relief that he sought, it would be an exaggeration to say that success was divided. He was, by and large, the successful party. Further he did not conduct himself or his case in a way that should negate or reduce the costs to which he would otherwise be entitled.
Similarly, I am not prepared to accept that Ms. Voiculescu seriously misconducted herself in these proceedings. While her financial disclosure could have been made more promptly, both parties' disclosure could have been more complete. I do not believe that she adopted delay as a trial strategy. She is elderly and throughout these proceedings was suffering from ill health. Her illness required medical attention and even hospitalization. While her health problems may have resulted in some delay, part of the delay was also as a result of the Court's own docket demands and some delay resulted from the ill health of Mr. Voiculescu's previous solicitor. While the ultimate conclusion of the trial was further delayed by Ms. Voiculescu's decision to represent herself on the concluding day of trial and to prepare her own written submission (a decision which she later reconsidered), it is probable that had she been represented throughout the proceedings by counsel, the final half day of trial would have been abbreviated only slightly and there would likely have been a similar delay in receiving written submissions in order to accommodate the schedules of the parties' lawyers. Although Ms. Voiculescu did not conduct her case inappropriately, misconduct is not a precondition to the successful party being awarded party and party costs.
While the Court is not insensitive to Ms. Voiculescu's health issues and financial circumstances, fairness requires that Mr. Voiculescu be awarded costs. His financial circumstances are no better than Ms. Voculescu's.
The definition of the "amount involved" as contained in the Tariffs does not lend itself well to matrimonial proceedings with the diversity of issues and assets in any given case. Goodfellow, J. in Urquhart v. Urquhart (1998), 169 N.S.R. (2d) 138 stated at paragraph 77:
"This like many matrimonial matters, does not easily equate with an "amount involved", which in itself, usually relates to the degree of exposure in an action. The value of matrimonial assets, such as the matrimonial home, furniture, etc., with a prima facie entitlement to an equal division, provide no guidance to concluding with any reasonable measure of certainty an "amount involved" as it relates to the amount recovered or claimed."
Goodfellow, J. attempted then to develop a formula for assessing costs in matrimonial proceedings:
" There is a need for some degree of uniformity in the exercise of judicial discretion, with respect to entitlement and quantum of costs. Very clearly, Dr. Urquhart is entitled to her party and party costs, and as one can readily see from the representations of counsel, they are expressing their view as to what might be reasonable, without any reference to a starting point or bench mark.
In all of the circumstances, I conclude that resorts should be taken to Tariff "A". In the determination of costs, I have guidance from the developing rule of thumb of equating each day of trial to an amount of $15,000.00 where there is no clear "amount involved". This has the benefit of reflecting the time aspect of the trial, which in itself, normally reflects the degree of preparation and time." (paragraphs 78 and 79)
There is no clear "amount involved" in the present case. Therefore, if one was to adopt Goodfellow J.'s formula of equating each day or part of a day to an amount of $15,000.00 the costs, using Scale 3, would be $3,375.00. Although the trial took only a day and a half of Court time, extensive written submissions were received by both parties subsequent to the conclusion of the trial. Scale 3 is appropriate as the evidence and the issues involved were of average complexity.
In addition, Mr. Voiculescu is seeking disbursements including air fare and hotel bills. At the time of the trial, he resided in Ontario and for the first day of trial he flew to Nova Scotia to be in attendance. I am not prepared to include his hotel and air fare bills in the disbursements to be paid by Ms. Voiculescu in this case. Both parties lived in Halifax during the final years of their marriage and were living in Halifax at the time of their separation.
Mr. Voiculescu did, however, incur other disbursements that can legitimately be claimed including the cost of photocopying, court filing fees, the cost of the marriage certificate, delivery and bailiff charges, long distance phone charges, facsimile charges and the like. I round those disbursements as coming to $800.00. These disbursements are to be added to the cost figure of $3,375.00.
In conclusion, I order that Ms. Voiculescu pay to Mr. Voiculescu costs in the sum of $4,175.00 inclusive of disbursements which sum is to be paid forthwith. I ask that Mr. Morris prepare the order.
Dellapinna, J.