SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Bailey v. Lenihan, 2021 NSSC 315
ENDORSEMENT
November 12, 2021
Lenihan v. Bailey
2020: 1201-067098
• Motion hearing December 2020.
On April 27, 2021, Mr. Lenihan filed letter requesting “costs for the emergency application for enforcement of parenting times”. He requested “a lump sum of $2500 for his legal costs.
On May 10, 2021, Ms. Bailey’s legal counsel. Judith Schoen filed a reply suggesting, “the outcome of the urgent motion filed by Mr. Lenihan was at best, mixed and each party should bear their own costs as a result or costs should be considered “in the cause” or using Tariff C based on a hearing of ½ day duration, “$750.00 would be the appropriate quantum”.
Decision:
Costs should be considered in the cause following a final hearing held in October 2021.
Reasons:
1. The parties have been before the Court on numerous occasions since their first date assignment conference on November 5, 2013. The parties reached a comprehensive agreement on all issues on April 23, 2014.
2. On November 21, 2016, Mr. Lenihan filed a Notice of Variation seeking to address the issue of travel with the children outside of Canada. An emergency hearing was held on November 25, 2016. The Honourable J. Dellapinna granted an Order allowing Mr. Lenihan to travel with the children. No costs were ordered.
3. On November 25, 2017, Ms. Bailey filed a Notice of Variation Application seeking to vary the terms for custody and parenting and child support retroactive to November 1, 2015. Conferences were held July 16, 2017, October 16, 2017, and on December 6, 2017. A hearing was scheduled for February 20, 2018. The trial was adjourned by agreement in favour of a settlement conference held May 11, 2018. No agreement was reached.
4. On July 10, 2018, Mr. Lenihan advised the Court he would be making an application to set aside certain terms included in the parties’ Corollary Relief Order.
5. I took over carriage of this file in September 2018.
6. A motion hearing was scheduled on November 20, 2018, to determine the issue of whether certain terms included in the Corollary Relief Order should be “set aside”.
a. On the date of the motion hearing the parties advised they had reached an agreement on custody and parenting. Outstanding issues included child support, designation of insurance, insurance plan, sharing section 7 expenses, and an issue regarding an RRSP.
7. The outstanding matters were adjourned to case management conferencing on December 7, 2018, and January 15, 2019. All matters were resolved by agreement on January 15, 2019.
8. In or around September 2020 both parties filed applications with the Court.
9. The parties appeared for conferences on October 27, 2020, and on November 12, 2020. The matter was adjourned to a pre-trial on March 26, 2021. The parties were directed to file affidavits to give the Court a better understanding of the specific issues to be resolved with respect to parenting, child support, and possibly extra curricular activities.
10. On December 10, 2020, Mr. Lenihan filed a motion for an Emergency Hearing. The matter was heard on December 22, 2020. I determined the existing Order would continue.
a. At the time of the hearing the parties’ children were 20, 17, and 15 and they were no longer complying with the shared parenting arrangement in place pursuant to the parenting terms agreed to in November 2018 and confirmed on the record on January 15, 2019.
b. Mr. Lenihan requested the Court vary the Christmas parenting schedule and vary custody of the children granting him sole custody. Mr. Lenihan suggested Ms. Bailey should not have any time with the children over the holidays. The existing order was continued.
11. On March 26, 2021, Mr. Lenihan inquired about, and he was provided with further direction regarding filing his costs submissions in relation to the motion hearing held December 22, 2020.
12. The issue of Mr. Lenihan’s request for sole care / custody of the children was scheduled for a final hearing in October 2021.
13. In his submissions for costs Mr. Lenihan stated that the motion hearing “took approximately” 1.5 hours. He argued that following the motion hearing Ms. Bailey “did provide significantly more access to my son over Christmas than provided in the proceeding months as a result of bringing this matter before the Court on an emergency basis”.
14. I did not grant Mr. Lenihan’s specific requests. When older children are refusing to follow the parenting terms which apply to them, the courts often remind parents how important it is for children to be encouraged and supported to resolve their differences or difficulties in their relationships with a parent. He has argued that he was the successful litigant because his emergency motion and comments made by the Court resulted in his son spending more time with him.
15. The most significant issue at the hearing was Mr. Lenihan’s request for more time with the children. Mr. Lenihan took the position that Ms. Bailey was responsible for the children choosing not to spend time with him.
16. 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. Mr. Lenihan’s motion was to change the Christmas schedule, to deny Ms. Bailey parenting time, and to request sole custody. He was not successful.
17. Civil Procedure Rule 77.02(1) states that I “may, at any time, make any order about costs as I am satisfied will do justice between the parties.”
18. Pursuant to Civil Procedure Rule 77.02(2) I have a general discretion to award costs so as to do justice between the parties.
19. Having regard to the duration of hearing and the history of this matter as it relates to the issue of Mr. Lenihan’s ongoing concerns about his parenting time, I find costs should be considered “in the cause”.
Cindy G. Cormier, J.S.C.(F.D.)