Supreme Court

SUPREME COURT OF Nova Scotia

FAMILY DIVISION

Citation: Davis v. Davis, 2022 NSSC 334

Date: 20221117

Docket: SKD-120735 No. 1204-007203

Registry: Kentville

Between:

Joanne Davis

Petitioner

v.

Donald Davis

Respondent

 

Judge:	The Honourable Justice Lloyd I. Berliner
Submissions on Costs:	August 25, 2022
Written Release:	November 17, 2022 – Decision on Costs
Counsel:	Kay L. Rhodenizer for the Petitioner Meaghan C. Johnston for the Respondent

 

 

BACKGROUND:

[1]             This is a Decision on costs following a contested Trial and written Decision – Davis v. Davis, 2022 NSSC 212 (“the Decision”) – which was released July 26, 2022.

[2]             In the Decision, I indicated that if the parties were unable to agree on the issue of costs, that written submissions should be received by me within 30 days after the Decision was released. The parties were unable to agree and therefore, each party filed written submissions on August 25, 2022.

[3]             Joan Davis’ Counsel provided extensive costs submissions consisting of the following:

•                 Submission on Costs (40 pages);

•                 Correspondence Book of Petitioners Costs Submissions (230 pages);

•                 Bill Book – Petitioner’s Costs Submissions (164 pages in total which includes the Retainer Agreement, various accounting ledgers and invoices rendered to Ms. Davis); and

•                 Case Book of Authorities including of the 2021 CRA Tax Guide.

[4]             Mr. Davis’ Counsel submitted a 12-page submission on costs along with various attachments to the submission found at tabs A to G which include correspondence between Counsel (41 pages total).

ISSUES

(a)	Position of the Parties
(b)	Who was the Successful Party
(c)	What is the Appropriate Costs Award
	(i)	The Law
	(ii)	Amount Involved
	(iii)	Lump Sum Award
(d)	Structure of Award / Security for Costs

ANALYSIS

1.                  Position of the Parties

[5]             Ms. Davis is seeking a substantial lump sum contribution to her legal fees and disbursements in the amount of $88,325. She argues that she was the more successful party and some of the success she achieved is not capable of quantification (something the tariff requires) and therefore, seeks a lump sum cost award.

[6]             Ms. Davis seeks substantial costs from Mr. Davis for reasons including the following:

a.	Her “gate to gate” legal costs from the beginning of the file up to and including her last invoice of August 23, 2022, totals $131,304.63.
b.	The amount sought $88,325 (inclusive of all disbursements) ignores legal costs for fees, disbursements, and taxes in the calendar year 2020, notwithstanding they include work to start the file including preparing Statements of Income, Property and Expenses presented at Trial and produced to Mr. Davis shortly after a Settlement Offer was made in October 2020.
c.	While Ms. Davis did not receive everything she requested at Trial, she was more successful in her claims than those claims made by Mr. Davis.
d.	A lump sum contribution to her legal fees and disbursements is warranted because it is not possible to quantify several of the major Trial issues including:
	i.	Asserting that the home should not be sold until the youngest child graduates;
	ii.	Equal division of Mr. Davis’ CAF Pension for which there were three different estimates at Trial;
	iii.	As a result of the CAF Pension division, the amount and duration of prospective child or spousal support was unknown; and
	iv.	The determination and quantification of the household contents is not possible based on the Decision.
e.	Other factors such as the parties conduct before and during litigation and settlement offers must be considered. This would include her initial settlement proposal in 2020.
f.	Mr. Davis’ failure to disclose banking information that was not attached to an Affidavit or his Statements of Income, Expenses or Property.
g.	Mr. Davis failed to produce his common-law partner as a witness at the Trial nor did he provide adequate information at the Trial with respect to her finances.
h.	Mr. Davis wasted court time particularly with respect to disclosure issues during court conferences, and the request for an appraisal of the matrimonial home on two occasions (prior to the Trial and following the completion of evidence in his post-Trial submissions).

[7]             Mr. Davis states that each party should bear their own costs. In support of his position, he asks me to consider the following:

a.	There was mixed success on the issues between the parties.
b.	The matter came before the court in an expeditious manner with no delays caused by either party.
c.	The matter went directly to Trial; there were no adjournments required.
d.	It was scheduled for two days which spilled into a third half-day, and further oral submissions followed by extensive written submissions by the parties, particularly Ms. Davis, which he characterizes as “extremely unnecessary and lengthy” at 73 pages plus 45 pages in tabs for a total of 118 pages of written submissions. The Petitioner had already filed a 37-page pre-Trial brief.
e.	The legal fees are not reasonable considering the amount of Trial time required and noting that the matter proceeded directly to Trial.
f.	Ms. Davis did not produce Exhibit books compiling her Exhibits. Instead, at the outset of the Trial, she had twenty separate Exhibits marked, which was not the most effective use of court time.
g.	Mr. Davis complied with all disclosure requested from Ms. Davis and there was continued receipt of requests for new disclosure up to and including Sunday, December 5, 2021 – approximately four days before Trial. Some of the disclosure requested from Ms. Davis was easily obtained by Ms. Davis as it was a joint account.
h.	Mr. Davis agreed to participate in a Settlement Conference, whereas Ms. Davis refused and wanted to proceed directly to a hearing.

[8]             In the alternative, Mr. Davis suggests that if there is a costs award to be determined, then increasing an award above the tariff amount would not be appropriate in the circumstances.

(b)  Who was the Successful Party

[9]             Overall, each party achieved some level of success on the multiple issues at the Divorce Trial. Not surprisingly – based on the level of disagreement of almost every issue at the Trial – the parties are also unable to agree on the level of success each party achieved in the Decision.

[10]         Ms. Davis was clearly the more successful party. I reach this conclusion based on the following analysis from the Decision:

•	Ms. Davis sought to list the house for sale after the youngest child graduated high school – it is what I ordered.
•	At the last-minute Mr. Davis sought to purchase Ms. Davis’ interest. As noted in the Decision, he sought to admit an appraisal into evidence at a very late date. In the end it did not come into evidence. After the evidence portion of the hearing was completed, Mr. Davis sought to obtain an appraisal to again have the Court Order a payout of Ms. Davis’ interest by him. I did not order what he sought.
•	All of Mr. Davis’ CAF Pension was shareable. Mr. Davis was unable to satisfy the court that there should be an unequal division of his CAF pension in his favour.
•	Ms. Davis was partially successful in including an equalization payment to her of $4,000 for the boat, trailer, ATV and plow (Ms. Davis sought a larger amount). Mr. Davis sought to exempt these assets from division under the Matrimonial Property Act. He was unsuccessful in doing so.
•	Ms. Davis was successful in obtaining an equal share of the value of the cottage. Mr. Davis was unsuccessful in exempting the cottage from division.
•	Ms. Davis was successful in the Court’s determination of Mr. Davis’ income.
•	Mr. Davis was unsuccessful in seeking to impute income to Ms. Davis.
•	Ms. Davis was the more successful party on the issue of retroactive child support. I ordered retroactive child support and credited Mr. Davis with 50% of the mortgage payments he made from the date of separation until the date of the Decision. Mr. Davis was not successful in seeking a larger credit for the expenses he paid against retroactive child support.
•	Ms. Davis was successful on the spousal support issue on both a prospective and retroactive basis.
•	Ms. Davis was also granted spousal support on both a compensatory and non-compensatory claim.
•	I did not accept any post-separation expenses Mr. Davis sought to deduct from the cottage value.
•	Mr. Davis’ request to manage the children’s RESP account was granted.
•	Mr. Davis’ date of separation was the date determined.
•	Mr. Davis was successful in avoiding any interest component on the $68,000 cash balance.
•	The parties had mixed success on a number of issues such as the value of the vehicles, section 7 expenses, and – to some extent – the balance of the bank accounts.

[11]         Ms. Davis was the more successful party and therefore is entitled to costs.

(c)   What is the Appropriate Costs Award

(i)               The Law

[12]         Nova Scotia Civil Procedure Rule 77 governs the awarding of costs. It gives the Court a wide discretion when awarding costs. The Rule provides in part as follows:

77.01 Scope of Rule 77
(1)	The court deals with each of the following kinds of costs:
		(a)	party and party costs, by which one party compensates another party for part of the compensated party’s expenses of litigation;
		(b)	solicitor and client costs, which may be awarded in exceptional circumstances to compensate a party fully for the expenses of litigation;
		(c)	fees and disbursements counsel charges to a client for representing the client in a proceeding.
(2)	Costs may be ordered, the amount of costs may be assessed, and counsel’s fees and disbursements may be charged, in accordance with this Rule.
77.02 General discretion (party and party costs)
(1)	A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.
(2)	Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement.
…
77.06 Assessment of costs under tariff at end of proceeding
(1)	Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act, a copy of which is reproduced at the end of this Rule 77.
…
77.07 Increasing or decreasing tariff amount
(1)	A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs
(2)	The following are examples of factors that may be relevant on a request that tariff costs be increased or decreased after the trial of an action, or hearing of an application:
		(a)	the amount claimed in relation to the amount recovered;
		(b)	a written offer of settlement, whether made formally under Rule 10 -Settlement or otherwise, that is not accepted;
		(c)	an offer of contribution;
		(d)	a payment into court;
		(e)	conduct of a party affecting the speed or expense of the proceeding;
		(f)	a step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily;
		(g)	a step in the proceeding a party was required to take because the other  party unreasonably withheld consent;
		(h)	a failure to admit something that should have been admitted.
…
77.08 Lump sum amount instead of tariff
A judge may award lump sum costs instead of tariff costs.
….
TARRIFS OF COSTS AND FEES DETERMINED BY THE COSTS AND FEES COMMITTEE TO BE USED IN DETERMINING PARTY AND PARTY COSTS
In these Tariffs unless otherwise prescribed, the “amount involved” shall be
		(a)	where the main issue is a monetary claim which is allowed in whole or in part, an 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 assessed by the court, if any,
				(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.
		…

[13]         Ms. Davis refers the Court to the “leading Appeal Court Decision on costs in family matters” being Armoyan v. Armoyan, 2013 NSCA 136 and Justice Forgeron’s recent Decision in KG v. HG, 2021 NSSC 142.

[14]         Mr. Davis refers the Court to the Decision of Pelley v. Peters, 2014 NSSC 277; K.F. v. M.C., 2017 NSFC 3; and Justice MacDonald’s Decision in Lubin v. Lubin, 2012 NSSC 93.

[15]         Upon review of the Decisions referenced by the parties, it appears that the parties do not differ on the law of costs but rather, the applicability of the law to the Decision and their respective positions.

[16]         In Wolfson v Wolfson, 2022 NSSC 263, Forgeron, J. gives a helpful review and summary of cost principles as follows:

[80]	Costs are payable to the successful party. In Armoyan v Armoyan, supra, Fichaud, JA reviewed relevant costs principles when determining whether costs should be paid based on the tariff or lump sum:
	•			The court's overall mandate is to "do justice between the parties": para 10.
	•			Unless otherwise ordered, party and party costs are quantified according to the tariffs. The court has discretion to raise or lower the tariffs, applying factors like those listed in Rule 77.07(2). These factors include unaccepted written settlement offers, and the conduct of the parties insofar as it affects the speed or expense of the proceeding: paras 12 and 13.
	•			The Rule permits the court to depart from the tariffs and award lump sum costs  in specified circumstances. Tariffs are the norm and there must be a reason to consider a lump sum: paras 14 and 15.
	•			The basic principle is that costs “should afford a substantial contribution to the party's reasonable fees and expenses.” A substantial contribution not amounting to a complete indemnity means more than 50% and less than 100% of a lawyer's reasonable bill for services: para 16.
	•			“The tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventional case whose circumstances conform generally to the parameters assumed by the tariffs”: para 17.  Some cases, however, “bear no resemblance to the tariffs’ assumptions”: para 18. For example, “[a] proceeding begun nominally as a chambers motion … may assume trial functions”; “[a] case may have no ‘amount involved’ ”; efforts may be “substantially lessened by the efficiencies of capable counsel, or handicapped by obstructionism”; “[t]he amount claimed may vary widely from the amount awarded”; “[t]he case may assume a complexity, with a corresponding work load, that is far disproportionate to the court time by which costs are assessed under the tariffs”; and “[t]here may be rejected settlement offers, formal or informal, that would have saved everyone significant expense”: para 18.
	•			When “subjectivity exceeds a critical level, the tariffs may be more distracting than useful”: para 18. In such a situation, “it is more realistic to circumvent the tariffs, and channel that discretion directly to the principled calculation of a lump sum. A principled calculation should turn on the objective criteria that are accepted by the Rules or case law”: para 18.
[81]	In Ward v Murphy, 2022 NSCA 20, Beaton JA, dissenting in part, reviewed the principles associated with party and party costs in family law litigation. After considering Armoyan, she noted that “[t]he tariffs are the norm, and there must be a reason to consider a lump sum”: para 15. A lump sum payment may be more appropriate, however, where the amount involved is difficult to identify. Beaton JA stated:
	[98]			When determining costs it can sometimes be difficult to identify the “amount involved”, particularly in family law litigation, where the issues in play are not always easily expressed as or quantified by a dollar amount. By contrast, other types of litigation may lend to easier quantification of the amount involved, such as, for example, in a contract dispute. The amount in issue was not easily discernable in this case. However, it was inaccurate for the judge to use the full amount of Mr. Ward’s income from the previous 2017 order as the “amount involved”, because while the parties disagreed on what figure represented Mr. Ward’s income, he was not suggesting his income was zero. In that sense, the entire $120,000 was not in dispute, but rather only a portion of it. For that reason, costs would have been better expressed in this case as a lump sum award, owing to the need to adjust application of the Tariff to reflect the rather nebulous quantification of the “amount involved”.
[82]		The amount involved is defined in the Rules as follows:
In these Tariffs unless otherwise prescribed, the “amount involved” shall be
		(a)	where the main issue is a monetary claim which is allowed in whole or in part, an 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 assessed by the court, if any,
			(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.
			…

(ii)             Amount Involved

[17]         The determination of the “amount involved” is the underpinning to the application of the tariffs.

[18]         Ms. Davis asserts that it is impossible to determine the “amount involved” and instead, focuses her submissions on the “amount claimed”. She is claiming $88,325 and indicates that a lump sum award is more appropriate.

[19]         Ms. Davis references the Decision of Justice Cormier in MacLean v. Miller, 2020 NSSC 224 who used tariff A, scale 3, following a four-day Trial plus two days to account for preparation for other court appearances. While still not suggesting an “amount involved” to apply to the tariffs, Ms. Davis’ Counsel appears to suggest that following MacLean (supra.) an amount of 77% of the net legal fees, disbursements, and experts’ costs is appropriate. 

[20]         As noted, Mr. Davis’ alternate position is that increasing an award above the tariff would not be appropriate in the circumstances.

[21]         The difficulty with this alternate position is that Mr. Davis did not provide any position, suggestion, calculation, or information regarding what he views the “amount involved” to be. Counsel simply made the statement as referenced above.

[22]         In my view, the determination of the “amount involved” (something the tariff requires) is not capable of quantification. Furthermore, to artificially determine an “amount involved” is not appropriate, nor is it likely to achieve a just result. Rather, I view a lump sum award as more appropriate. Therefore, I shall not employ the tariffs and instead will focus my discretion in arriving at a lump sum amount based on Ms. Davis’ “reasonable legal fees and other relevant factors” as required.

(iii)           Lump Sum Award

[23]         According to the information provided, Ms. Davis has incurred legal fees up to August 23, 2022 in excess of $131,000. This amount also takes into account various “discounts” and “non-charges” to Ms. Davis during the course of the retainer. But for these concessions to Ms. Davis, her legal fees would likely be even larger.

[24]         In arriving at the lump sum amount of $88,325 (inclusive of all disbursements), Ms. Davis contends that this amount would afford her a “substantial contribution to her reasonable legal fees and expenses”. Ms. Davis cites Fichaud, J.A. in Armoyan (supra.) in which the Court’s overall mandate under Rule 77.02(1) is to “do justice between the parties” (paragraph 10) and the basic principle is that the cost award should afford a substantial contribution to the parties’ reasonable fees and expenses (paragraph 16).

[25]         In order to quantify a lump sum amount, I must first determine the appropriate base sum, followed by a determination of a percentage that would amount to a “substantial contribution” not amounting to complete indemnity.

[26]         In this case, Ms. Davis submits that I adopt a base sum of $112,119.41 and suggests that I adopt the Armoyan (supra.) percentage as a guideline, resulting in a combined figure of 77%. Her reasonable legal fees should then be set at $88,325 (inclusive of disbursements).

[27]         Ms. Davis also asks me to consider a number of other factors supporting her submissions to arrive at what the reasonable legal fees and disbursements are. They are identified as follows:

a.   Conduct – child support

b.   Conduct – disclosure

c.   Conduct – wasting court time / adding to litigation fees

d.   Offers to Settle

a.            Conduct – Child Support

[28]         Ms. Davis submits that she incurred increased legal fees as a result of Mr. Davis’ failure to provide any interim child support and refusal to accept any responsibility for interim spousal support. She also says that Mr. Davis’ failure to acknowledge and pay support when it was due (as opposed to after the Decision) increased her costs and put Ms. Davis at the expense of seeking to quantify child support.

[29]         Ms. Davis submits that she went twenty-five months without child support when Mr. Davis had $110,000 in his bank account in May 2020 and $68,000 in cash remaining at Trial. He also removed the Canada Child Tax Benefit from the family’s joint bank account knowing that this money was available for Ms. Davis.

[30]         Ms. Davis says that Mr. Davis’ conduct with respect to child support should be considered when determining Ms. Davis’ reasonable legal fees. 

b.            Conduct - Disclosure

[31]         Ms. Davis submits that Mr. Davis did not provide timely disclosure. Ms. Davis provided the Court with numerous letters and formal requests for production per the Civil Procedure Rules seeking disclosure from Mr. Davis. These requests included bank records that were not attached to Mr. Davis’ two sworn Statements of Property.

[32]         For his part, Mr. Davis says he complied with numerous requests for disclosure, notwithstanding that Ms. Davis could have obtained the disclosure herself and provides an example of a TD joint bank account (Exhibit 20, tab 3). Mr. Davis says that he complied with all disclosure requests from Ms. Davis and continued to receive requests for new disclosure up to and including Sunday, December 5, 2021 – the eve of the Trial. Mr. Davis also points out that no Motions for Production were required to be filed to obtain financial information.

[33]         I have reviewed the extensive correspondence exchanged between Counsel found in the Correspondence Book with Ms. Rhodenizer’s extensive costs submissions. I accept that Mr. Davis may not have been forthcoming in a timely manner on a number of financial disclosure issues (see letter of March 10, 2021 – pages 97 to 101 of the Correspondence Book) nor the $68,000 cash in his “lock box” at home. I do not believe it reached the level of misconduct described in the Armoyan (supra.) case which resulted in a combined figure of 77%.

c.             Conduct – Wasting Court Time / Adding to Litigation Fees

[34]         Ms. Davis submits that by failing to produce Ms. Hoogerwerf (Mr. Davis’ partner) as a witness, as well as failing to provide adequate information with respect to her finances before the Trial, Ms. Davis was required to subpoena Ms. Hoogerwerf. Furthermore, Ms. Hoogerwerf retained Counsel herself who was in contact with Ms. Davis’ Counsel. This all added to Ms. Davis’ legal costs. Ms. Davis submits that had Mr. Davis and/or his Counsel explained to Ms. Hoogerwerf the need to provide the financial information, the additional costs would not have been required.

[35]         Ms. Davis submits that Mr. Davis wasted Court time and increased Ms. Davis’ legal fees by having to respond to his requests to have the home appraised so that he could purchase Ms. Davis’ interest in the home as submitted in his post-Trial submissions.

[36]         From his perspective, Mr. Davis says that Ms. Davis did not produce Exhibit books to compile most of her Trial Exhibits (which the Court had requested) and instead, at the outset of the Trial she marked twenty separate Exhibits. To that end, Mr. Davis says that it was not a sufficient use of the court’s valuable time.

d.            Offers to Settle

[37]         Ms. Davis submits that there were various settlement offers made by her throughout the course leading up to the Trial. Copies of the settlement offers to Mr. Davis (both before he retained legal Counsel and following) were provided. I have also reviewed the responses provided by Mr. Davis’ Counsel. Ms. Davis says that when Mr. Davis submitted an offer, she responded in a timely and reasonable fashion. She says that Mr. Davis did not.

[38]         Mr. Davis’ position is that he attempted to settle the matter by providing various settlement proposals and attempted to settle some of the issues prior to Trial. He provided the court with a copy of those proposals. Furthermore, Mr. Davis acknowledges that not everything he proposed was ordered in the Decision. He says he did make efforts to settle and was prepared to participate in a Settlement Conference while Ms. Davis was not and instead, she wanted to proceed directly to a hearing.

[39]         I have considered the various exchanges of offers in relation to the results in the Decision. It is clear that Ms. Davis was initially focused on obtaining child support. The parties differed on Mr. Davis’ income. Eventually Mr. Davis conceded on this point and acknowledged his responsibility for child support. At no time did Mr. Davis say that he was not prepared to pay child support. Instead, he was simply seeking to offset child support against third-party payments (mortgage and car payments).

[40]         While the Decision did not provide Mr. Davis with all the offsets he sought against retroactive child support, he was given credit for the mortgage payments toward the amount of retroactive child support.

DECISION

[41]         I am not persuaded the amount suggested by Ms. Davis is a reasonable amount of legal fees in the circumstances. In coming to this conclusion, I appreciate that Ms. Davis and her Counsel had the “labouring oar” on a number of issues which resulted in additional legal fees including responding to requests for the appraisal of the home; quantifying Mr. Davis’ income in relation to his pension and disability amount received; addressing capital gains with respect to the cottage; etc.

[42]         I also had an opportunity to review the evidence at Trial, post-Trial submissions, and the invoices provided. I find that at times, there was an excessive and unreasonable amount of time spent on issues which likely increased Ms. Davis’ legal bills. For instance, a significant amount of time was spent addressing the parties’ bank accounts and reconciling the amounts. In her post-Trial submissions, Ms. Davis submitted twelve pages of detailed calculations from the bank records. The result of the detailed calculations and summary provided by Ms. Davis sought a net amount owing to her of $32.49. In the Decision, after carefully reviewing all of the evidence, I awarded an amount of $82.13 to Mr. Davis. A significant amount of time, effort, and ultimately legal fees were expended to address this one – in my view – minor item (value less than $100). It is indicative of the extent Ms. Davis pursued each of the items for division of assets and debts. Although accurate, one questions whether the work performed was necessary and proportionate to the eventual award.

[43]         Preparation and attendance at this two-and-a-half-day Trial with post-Trial written submissions following should not result in legal fees in excess of $131,000 nor $88,325. It is not a reasonable amount regardless of how much time and effort has been expended by Counsel.

[44]         When I consider the provisions of Civil Procedure Rule 77, and the factors identified including conduct – which added to legal fees – and offers to settle, along with the principles for the awarding of costs from the case authorities, I am not persuaded that any one of those items, or combined in any way, would result in reasonable legal fees sought by Ms. Davis of $88,325.

[45]         I am also advised that Mr. Davis’ legal fees inclusive of disbursements and HST were approximately $32,000. While a comparison of legal fees from opposing Counsel is helpful and may put some things into perspective, they are not in any way determinative of what the reasonable legal fees are in these circumstances.

[46]         In all the circumstances of this case, I find that a reasonable base amount of legal fees is $60,000.

[47]         I do not agree that the combined rate of 77% is reasonable or justified. In exercising my discretion, I award Ms. Davis 60% of the stated reasonable legal fees inclusive of disbursements, which totals $36,000. This amount provides Ms. Davis with a substantial contribution exceeding 50% of the appropriate base sum and an amount I believe does justice between the parties.

(d)  Structure of Award / Security for Costs

[48]         Ms. Davis seeks an Order assisting in collecting the costs awarded and interest in the event payment is made over time. Further, if costs are paid in installments, that this Decision specifically identifies what part of the installments are costs that relate to child and/or spousal support to be paid through Maintenance Enforcement and protection in the event of bankruptcy.

[49]         Mr. Davis’ submissions on costs are silent on these points.

[50]         Most recently, Justice Jesudason – in the Decision of Pennell v. Larkin, 2022 NSSC 303 – ordered costs following a Trial in the amount of $20,000, the first $5,000 to be paid forthwith and the remaining $15,000 paid in $1,000 installments. In arriving at that Decision, Justice Jesudason stated:

[23]   I come to this conclusion for the following reasons:

…

7.     By requiring Mr. Larkin to pay $5,000 of the costs award now, with the remaining $15,000 being payable in $1,000 installments over the next several months, this should diminish any concerns that ordering a significant costs award payable immediately would, as his counsel suggests, represent a “crushing blow” to him and negatively impact on his ability to care for Braylen…

8.     My costs award represents a reimbursement of close to 60% of Ms. Pennell’s stated legal fees. In all the circumstances, I conclude that such as cost award is just and appropriate and does justice between the parties.

 I am also mindful that Mr. Davis was Ordered to pay child support for two children in the amount of $1,125 per month; $31,545 for retroactive child support; retroactive and prospective spousal support ($2,500 lump sum and $250 per month); and an equalization and reconciliation payment to Ms. Davis of approximately $98,000.

[51]         I Order that $6,000 of the costs award shall be paid immediately, with the balance of $30,000 payable in $1,000 installments over the next 30 months beginning January 1, 2023.

[52]         In exercising my discretion, I am not prepared to award any interest for the installments. Lastly, I determine that 50% of the outstanding balance ($15,000) relates to the issues of child and/or spousal support.

[53]         I ask that Ms. Rhodenizer prepare the Costs Order arising from this Decision which should be consented as to form by Ms. Johnston. Kindly submit the Final Order within 15 days of receipt of this Decision.

Berliner, J.