SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Windover v. Windover, 2019 NSSC 240
Date: 2019-07-25
Docket: 1201-67412
Registry: Halifax
Between:
Kent Donald Windover
Petitioner
v.
Kristine Dawn Windover
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Elizabeth Jollimore
Summary: Mr. Windover ordered to pay costs of $500.00 following unsuccessful motion for Voice of the Child Report. Costs reduced from the $1,000.00 requested because Ms. Windover didn’t comply with filing deadlines.
Key words: Family, Costs
Legislation: Nova Scotia Civil Procedure Rules, Rule 77.03(3)
THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.
ENDORSEMENT
Citation: Windover v. Windover, 2019 NSSC 240
July 25, 2019
Kent Windover v. Kristine Windover
2013; 1201-67412 SFH-D 88404
• Christine J. Doucet for Kent Windover
• Patrick J. Eagan for Kristine Windover
Request for costs of $1,000.00 following an unsuccessful ½ day motion for a Voice of the Child Report based on Tariff C.
Decision:
Kent Windover shall pay Kristine Windover costs of $500.00 on or before August 30, 2019.
Reasons:
1.
Kent Windover moved to have the court
order a Voice of the Child Report be prepared for Jacob and Noah. Kristine
Windover opposed the motion.
2.
Mr. Windover filed two affidavits and
Ms. Windover filed one. Each party filed a brief.
3.
Anticipating there would be medical
evidence, the motion was scheduled for 2 and ½ hours. It took 2 and ¼ hours,
without any medical evidence.
4. Mr. Windover’s motion was dismissed.
5. Ms. Windover asks for costs of $1,000.00 based on Tariff C. Mr. Windover proposes costs of $500.00 because:
o Ms. Windover failed to proffer a medical witness
o Ms. Windover attempted to offer hearsay opinion evidence
o Ms.
Windover failed to meet the deadlines of the Civil Procedure Rules for filing
her affidavit and her brief
6.
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.
7.
The hearing required almost all the time
allotted for it even without a medical witness. Ms. Doucet’s opening,
questioning and submissions took more than one hour while Mr. Eagan’s took
less.
8.
Both parties attempted to offer evidence
beyond their capacity: Ms. Windover filed a letter containing a medical opinion
from Dr. LeBlanc and Mr. Windover summarized information from the Diagnostic
and Statistical Manual (both DSM-5 and DSM-IV) and offered his opinion of his
son’s diagnosis. There is no evidence that Mr. Windover is trained in
psychiatry or psychology.
9.
Under Civil Procedure Rule 23.11, Ms.
Windover’s affidavit and brief were to be filed by Monday, July 15, 2019. She
filed them on Wednesday, July 17, 2019. She did not seek leave to file the
materials late and Mr. Windover did not object to her reliance on the
late-filed material.
10.
Costs awards serve to discourage
behaviour. I would award Ms. Windover the costs she seeks if she had complied
with the rules. I have reduced the amount of costs awarded to her from the
$1,000.00 she seeks to $500.00 to reflect her late filing.
_____________________________
Elizabeth
Jollimore, J.S.C.(F.D.)