SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Djuric v. Dellorusso, 2019 NSSC 258
Date: 20190829
Docket: Sydney No. 106945
Registry: Sydney
Between:
Brian Djuric
Applicant
v.
Anne Dellorusso
Respondent
Library Heading
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Judge: |
The Honourable Justice Theresa Forgeron |
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Submissions: |
April 15, 16, and 29, 2019; and June 14, 2019 |
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Subject: |
Family Law; Costs |
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Summary: |
Costs of $5,100, plus disbursements, were awarded to the mother and the terms of the variation order resolved. |
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.
SUPREME COURT OF Nova Scotia
FAMILY DIVISION
Citation: Djuric v. Dellorusso, 2019 NSSC 258
Date: 20190829
Docket: Sydney No. 106945
Registry: Sydney
Between:
Brian Djuric
Applicant
v.
Anne Dellorusso
Respondent
Decision on Costs/Form of Order
Justice: The Honourable Justice Theresa M Forgeron
Submissions: April 15, 16, and 29, 2019; and June 14, 2019
Counsel: Nicholas E Burke, for the Applicant
Candee J McCarthy, for the Respondent
By the Court:
Introduction
[1] Mr. Djuric and Ms. Dellorusso are former spouses who disputed whether substantial maintenance arrears were outstanding. This issue was resolved in my decision reported at Djuric v. Dellorusso, 2019 NSSC 95.
[2] I am now asked to address two further issues flowing from this decision, as follows:
• What is the appropriate cost award?
• What is the appropriate form of order?
[3] The parties submitted written argument on these issues in April and June 2019.
Background
[4] The Nova Scotia confirmation hearing in respect of Mr. Djuric’s variation application was held over a portion of four days in 2018 and 2019. The significant dispute was whether child support arrears of about $189,000, inclusive of interest charges, were outstanding. To resolve this issue, I made credibility determinations and interpreted the meaning of the last court order.
[5] After conducting a legal and factual analysis, I held that the last court order did not expunge the child support arrears because of the following:
• The variation order amended and did not displace the previous court order.
• Matters about which a variation order is silent are not regarded as having been adjudicated or resolved.
• The order was not ambiguous. The order addressed prospective child support and not the cancellation of arrears.
• If, however, the order was considered ambiguous, the same conclusion was found through the application of the contra proferentum rule.
[6] I further held that the Limitations of Action Act did not apply to the collection of child support arrears. Policies connected to hoarding and windfall were also dismissed.
[7] Finally, although I concluded that the child support arrears must be enforced, I also reduced the interest rate payable on the arrears. Mr. Djuric was ordered to pay the accumulated interest charges until January 1, 2002. As of January 1, 2002, interest was to be calculated only during the time that the variation order was registered for enforcement. No interest was payable during the time Ms. Dellorusso withdrew from the enforcement program. Further, commencing June 1, 2017, the interest rate was amended to reflect a rate of 4% and not 7%.
Analysis
What is the appropriate award of costs?
Mr. Djuric’s Position on Costs
[8] Mr. Djuric, the applicant, states that the parties should bear their own costs for reasons including the following:
• Ms. Dellorusso was late in filing her costs submissions.
• This is a family law file where costs are difficult to assess given mixed outcomes and given the impact of an onerous cost award on families.
• Mr. Djuric was successful in the provisional leg of the application held in Ontario.
• While Mr. Djuric was not entirely successful in Nova Scotia, his claim was not without merit; he had some measure of success in the reduction of the interest payment.
• Mr. Djuric expended a significant amount of money on his own legal fees and cannot afford to pay costs given the child support arrears. Further, Mr. Djuric is no longer working and experiences health problems.
• Ms. Dellorusso overstated the interest payment.
• The matter took a total of a day and a half to hear, albeit over four days.
Ms. Dellorusso’s Position on Costs
[9] Ms. Dellorusso, the respondent, seeks substantial costs of $25,750 for reasons including the following:
• Ms. Dellorusso was the successful party and is entitled to costs.
• The proceeding was about child maintenance arrears and interest. Ms. Dellorusso was almost entirely successful, with the exception of a small quantity of interest charges.
• More adverse credibility determinations were made against Mr. Djuric than Ms. Dellorusso.
• Mr. Djuric’s conduct created this unnecessary legal proceedings. He acted in bad faith in preparing the 2001 consent variation order and in bringing his motion for the 2017 provisional hearing, including failing to disclose his income and falsely claiming that he consistently paid child support.
Decision on Costs
[10] Rule 77 governs awards of costs. I reviewed and applied the law as stated in Armoyan v. Armoyan, 2013 NSCA 136 and I referenced the cases submitted by counsel.
[11] I have determined that costs are payable to Ms. Dellorusso in the amount of $5,100, together with 85% of her disbursements. This payment will do justice between the parties for the following reasons:
• Ms. Dellorusso was almost entirely successful. I assign her success rate at 85%. There is no meritorious reason to deprive her of costs in such circumstances.
• This matter was scheduled in chambers. Approximately 1.5 days of court time was expended on this matter.
• Tarriff C indicates a range of $2,000 per day, which equates to $3,000 for 1.5 days.
• Tariff C (4) provides the court with the discretionary authority to increase this amount by applying a multiple of two, three or four based on the matter’s complexity, the matter’s importance to the parties; and the amount of effort involved in the hearing’s preparation and conduct.
• In this case, I first note that the variation application was not complex. There were no novel questions of law, although there was a significant factual dispute. Second, the issues were of utmost importance to the parties because the application involved child support and the enforcement of maintenance arrears. Third, I find that Ms. Dellorusso expended a significant amount of time and effort to respond to the variation application.
• In the circumstances, I apply a multiplier of two to determine costs that are just and appropriate which equates to $6,000. 85% of $6,000 equals $5,100.
What is the appropriate form of order?
[12] The significant issue respecting the form of the order relates to the interest calculation. My ruling on the interest charges was as follows:
• Mr. Djuric must pay the accumulated interest charges as per the divorce order and the variation order until January 1, 2002.
• As of January 1, 2002, interest will be calculated during the time that the variation order was registered for enforcement. No interest is payable during the time when Ms. Dellorusso withdrew from the enforcement program.
• Commencing June 1, 2017, the interest rate will be amended to reflect a rate of 4% and not 7%.
[13] The parties ask that I specify the amount of the outstanding interest charges. I cannot do so because I have insufficient evidence. Given the impasse, the parties are directed to provide evidence as to the following:
• Confirmation of the dates when the order was registered for enforcement from January 1, 2002 to present.
• Expert evidence as to the calculation of interest in conformity with the court’s order.
[14] The parties are encouraged to resolve this issue by the joint retainer of one expert, and if not, costs will likely be addressed at the conclusion of a hearing to set the outstanding interest. The parties are to contact scheduling to obtain a chambers hearing.
[15] The variation order as prepared by Ms. McCarthy is acceptable subject to the following revisions:
1. Accepted;
2. Child support arrears accumulated under the corollary relief order dated May 12, 1993 until April 1, 2001 are due and owing by Mr. Djuric and must be enforced forthwith;
3. Child support arrears accumulated under the corollary relief order dated May 12, 1993 until April 1, 2001 are subject to interest charges to be calculated as follows:
a. The arrears that accumulated between the issuance of the May 12, 1993 divorce order and the April 1, 2001 variation order are subject to an 8% per annum interest rate.
b. Then at a rate of 7% as stated in the Variation Order from April 1, 2001 until January 1, 2002.
c. As of January 1, 2002, interest will be calculated only for the time that the variation order was registered for enforcement. No interest is payable during the time when the Respondent withdrew from the Maintenance Enforcement Program/Family Responsibility Office.
d. Ongoing interest on arrears owing, commencing June 1, 2017, shall be calculated at a rate of 4% per annum.
4. The interest calculation will be subject to further hearing absent agreement of the parties. The future calculation of the interest payment must not delay the enforcement of the maintenance arrears stated in clause 3 of this order, and the cost award stated in clause 5 of this order.
5. Mr. Djuric must pay Ms. Dellorusso costs of $5,100, together with 85% of the respondent’s disbursements.
The balance of the draft variation order is acceptable.
[16] Ms. McCarthy is to redraft the order.
Forgeron, J.