Supreme Court of Nova Scotia
(FAMILY DIVISION)
Citation: Bose v. Bose, 2023 NSSC 269
Date: 20230907
Docket: 1201-72403; SFHD-117035
Registry: Halifax
Between:
Shivdev Chandra Bose
Petitioner
v.
Emma Louise Bose
Respondent
Library Heading
Judge: |
The Honourable Justice Elizabeth Jollimore |
Written Submissions: |
August 24, 2023 by Philip Whitehead for Shivdev Bose August 24, 2023 by Emma Bose |
Written Decision: |
September 7, 2023 |
Key words: |
Costs, substantial contribution, contempt, off-set |
Summary: |
Father awarded costs where he was successful in contempt application. Father not permitted to set-off costs against his child support. |
Legislation: |
Civil Procedure Rule 77.03(3) |
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: Bose v. Bose, 2023 NSSC 269
Date: 20230907
Docket: 1201-72403; SFHD-117035
Registry: Halifax
Between:
Petitioner
v.
Emma Louise Bose
Respondent
Judge: |
The Honourable Justice Elizabeth Jollimore |
Written Submissions: |
August 24, 2023 |
Counsel: |
Philip Whitehead, for Shivdev Bose Emma Bose, self-represented |
SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION)
Citation: Bose v. Bose, 2023 NSSC 269
ENDORSEMENT
September 7, 2023
Shivdev Bose v. Emma Bose
2019; 1201-72403; SFH-D117035
• Philip Whitehead for Mr. Bose, submissions filed on August 24, 2023
• Emma Bose on her own behalf, submissions filed on August 24, 2023
Mr. Bose seeks costs of $28,733.91 where he was successful in proving Ms. Bose was in contempt of certain provisions of the Corollary Relief Order.
Decision:
Ms. Bose must pay Mr. Bost costs of $22,500 (inclusive of disbursements) on or before August 31, 2024.
Reasons:
1. Ms. Bose was found in contempt of various provisions of a Corollary Relief Order following a single day hearing. A further 1-day hearing followed to address penalty. (The decisions are reported at 2023 NSSC 229 and 2023 NSSC 257, respectively.)
2. Civil Procedure Rule 77.03(3) says that “Costs of a proceeding follow the result”. Costs are in my discretion. Costs may be awarded in contempt cases.
3. The Court of Appeal has said because of the nature of civil contempt “more often than not costs are awarded on a solicitor-client or full or substantial indemnity basis”: Sleigh v. McLean, 2019 NSCA 71, at para 79.
4. The Court of Appeal also said “costs in contempt matters, even those involving family disputes, may be significant to impress on the contemnor and the public generally that court orders must be followed. If costs are not sufficient, it may make a mockery of and undermine contempt proceedings”: Sleigh v. McLean, 2019 NSCA 71 at para 91.
5. Mr. Bose’s costs for the 2 days of hearing were $29,733.91. The costs are reasonable.
6. Mr. Bose did not prove all his allegations of Ms. Bose’s contempt. The penalty imposed on Ms. Bose was closer to Mr. Bose’s position than Ms. Bose’s.
7. Because Mr. Bose was not completely successful in proving all his allegations, I reduce the extent of his indemnification from the 80% endorsed by the Court of Appeal in Sleigh v. McLean, 2019 NSCA 71.
8. I order Ms. Bose to pay Mr. Bose costs of $22,500, inclusive of disbursements, no later than August 31, 2024.
9. Mr. Bose has asked that he be permitted to offset Ms. Bose’s costs (here and in the divorce) against his obligation to pay her child support. Mr. Bose acknowledges the Court of Appeal’s direction in Wile v. Barkhouse, 2014 NSCA 11 at para 20, that “setting off a spousal debt against child support is undesirable and is to be avoided” and argues that the circumstances of this case dictate otherwise, falling into the exception carved out by the Court of Appeal in Wile v. Barkhouse.
10. Writing on behalf of the Court at para 20 in Wile v. Barkhouse, Justice Bryson identified 4 circumstances where it may be appropriate to set-off some or all of child support against costs associated with litigating that issue. They are where:
a. The debt involved was incurred in connection with the support claim;
b. There’s no reasonable prospect that the parent paying support will collect costs;
c. There’d be no adverse impact on Ezra;
d. It would not otherwise be inequitable to order a set-off.
11. Here, Mr. Bose’s costs were not incurred in connection with the support claim, but in connection with his contempt claim. I accept there is no reasonable prospect that Mr. Bose will collect costs. Because Mr. Bose raised this issue in his submissions (filed at the same time Ms. Bose filed hers), I have no evidence or argument from her of the impact of a set-off on Ezra, or of any inequities.
12. I decline to order the set-off but I note the parties may consent to this arrangement if they wish.
13. I have drafted the Order which I enclose.
Elizabeth Jollimore, J.S.C.(F.D.)