Winsor v. Winsor

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation: Winsor v. Winsor, 2017 NLCA 54 Date: September 12, 2017 Docket: 201501H0072 BETWEEN: CHRISTOPHER WINSOR APPELLANT AND: SAMANTHA WINSOR RESPONDENT Coram: Green C.J.N.L., Welsh and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F), 201202F0624 (2015 NLTD(F) 20) Appeal Heard: March 17, 2017 Judgment Rendered: September 12, 2017 Reasons for Judgment by: Hoegg J.A. Concurring reasons by: Green C.J.N.L. Dissenting in part by: Welsh J.A. Counsel for the Appellant: Melanie Del Rizzo and Caitlin Urquhart Counsel for the Respondent: Tammy Drover Page: 2 Hoegg J.A.: INTRODUCTION [1] Christopher Winsor appeals a Family Division Judge’s order that he pay child support to his adult daughter, Samantha, pursuant to the provisions of section 37 of the Family Law Act, RSNL 1990, c. F-2 (FLA). BACKGROUND [2] Samantha Winsor is the only child of divorced parents Christopher and Vanessa Winsor. She was born in 1994 and was 12 years old when her parents separated. Samantha lived with her mother after her parents’ separation, but a couple of years later her mother’s serious illness precluded that arrangement. Samantha then lived with maternal relatives, and after that with her father, who took time off from his work in western Canada to return to Newfoundland to look after Samantha. [3] Mr. Winsor eventually had to return to work for financial reasons. By then he had begun a relationship with his current spouse, Corinne, who helped look after Samantha for the first while after Mr. Winsor returned to work. Corinne subsequently moved into the Winsor home with her two sons. Around this time relations between Samantha and her dad and Corinne and her sons began to deteriorate. [4] Samantha had developed an anxiety condition when she was about 10 years old. It worsened over time, especially when she was living with her sick mother, during which time she did not attend school. After she began living with her father she began receiving psychiatric care. Her medical condition further deteriorated after her father returned to work and Corinne and her sons moved into the Winsor home. Samantha was hospitalized for several weeks in the fall of 2010, but upon her release and return home her condition worsened again. Samantha moved out of the family home in February 2011. She initially stayed with friends but eventually moved into her own accommodation supported by social services. In July 2012 Samantha filed an originating application seeking child support from her father. Page: 3 The Trial Decision [5] Samantha’s application for child support was heard over five days in October 2014 and January 2015. The Judge found that Samantha was entitled to child support, saying, at paragraph 57 of 2015 NLTD(F) 20: I am therefore satisfied that Samantha, commencing in January 2013, and continuing up to and including the present time, has presented reasonable and reliable evidence to prove that she, an adult child, with well-documented continuing serious medical difficulties, has been in pursuit of reasonable education as required by section 37[(7)(a)] of the FLA. Samantha is thus entitled to child support. The Judge went on to calculate retroactive support for the years 2013 and 2014, and prospective child support from 2015 until Samantha obtained her Bachelor of Nursing Degree. He ordered lump sum costs of $5,000 payable by Mr. Winsor to Samantha within 30 days of his order. ISSUES [6] The central issue on appeal is whether the Judge erred in concluding that Samantha was an adult child entitled to child support. Resolution involves reviewing the Judge’s findings that Samantha did not voluntarily withdraw from her father’s care and that she was in pursuit of reasonable education. [7] Other issues for appellate review are whether the Judge properly ordered the payment of child support arrears, whether he properly assessed the arrears payable as well as the quantum of Samantha’s award of future support, and whether he ought to have set a date for termination of child support for Samantha. Costs are also in issue. STANDARD OF REVIEW [8] It is well established that questions of law are reviewable on a correctness standard. Questions of fact and mixed fact and law, and factual inferences are reviewable on a standard of palpable and overriding error, unless there has been an extricable error of principle, in which case the review standard is correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 11, 23 and 37 and Cleary v. Courtney, 2010 NLCA 46, 299 Nfld. & P.E.I.R. 85, at para. 15). Page: 4 [9] Decisions respecting support obligations under family law legislation involve the exercise of discretion by trial judges. The “fact-based and discretionary nature” of such decisions requires appellate courts to defer to them and not to overturn them “unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong” (Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10 and 11). The reasons for such deference were explained by the Court at paragraph 12: … This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant facts and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [10] The above standard of review was reiterated by the Supreme Court in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 136, and applied by this Court in Wagstaff v. Marche, 2014 NLCA 28, 352 Nfld. & P.E.I.R. 216, at para. 26. ANALYSIS [11] Section 37 of the Family Law Act obliges parents to support their children. The following sections pertain: (1) Every parent has an obligation, to the extent that the parent is capable of doing so, to provide support for his or her child. (2) A court shall, upon application, make an order for support of a child in accordance with the child support guidelines. (3) Notwithstanding subsection (2), a court may make an order for support, interim support or a variation of support for a child in an amount that differs from the amount that would be in accordance with the child support guidelines if that court is satisfied that (a) special provisions in an order, judgment or written agreement respecting the financial obligations of the parents, or respecting the Page: 5 division or transfer of their property, directly or indirectly benefit a child or that special provisions have otherwise been made for the benefit of a child; and (b) the application of the child support guidelines would result in an amount of support that is inequitable given those special provisions. ... (7) The obligation under subsection (1) does not extend to (a) a child who has attained the age of majority unless that child is under the charge of his or her parent and is unable by reason of illness, disability, pursuit of reasonable education or other cause to withdraw from the parent's charge or to obtain the necessities of life; (b) a child who has not attained the age of majority and who is married; and (c) a child over the age of 16 years who has withdrawn from parental care. [12] In short, parents must provide for support their unmarried adult children who are unable by reason of illness, disability, pursuit of reasonable education or other cause to withdraw from parental care. Did Samantha voluntarily withdraw from her father’s care? [13] The Judge found that Samantha had not voluntarily withdrawn from her father’s care. Rather, he found that she was effectively forced from the family home due to an intolerable living situation. His statement at paragraph 48 of his decision sums up his reasoning: When all facts and circumstances are considered cumulatively, especially when considered against the backdrop of Samantha’s well-documented long-standing mental illness including chronic anxiety, panic attacks and agoraphobia, and having to be hospitalized on at least three occasions, I find that there is only one reasonable conclusion – Samantha did not voluntarily withdrawn [sic] from her father’s care. [14] Mr. Winsor argues that Samantha left the family home on her own motion. Further, he maintains that she does not keep him apprised of her student status or academic progress, and argues that her other inappropriate conduct supports his position that she voluntarily withdrew from his care. Page: 6 [15] In finding that Samantha did not voluntarily withdraw from her father’s care, the Judge considered much evidence showing that Samantha was not supported in her father’s household, that its atmosphere was characterized by constant verbal battles, and that there were several instances of inappropriate parental conduct toward her. He noted that Samantha’s father did not attempt to bring her home after she left and that he did not respond to her attempts to communicate or otherwise connect with him and also that Corinne’s email contact with Samantha “made it abundantly clear that Samantha was no longer welcome to return to the family home” (paragraph 20). [16] The Judge was alive to the fact that Samantha’s behavior was not always appropriate. However, he was satisfied that it paled in comparison to her father’s and Corinne’s behavior which he deemed “more relevant”. Also significant to the Judge was “that the heated exchanges took place between a medically disabled teenager and an adult” (paragraph 47). [17] Living with teenagers can be challenging, and parents cannot be held to a standard of perfection in this regard. Nevertheless, Samantha’s behavior must be viewed against the backdrop of her illness and age – she was a sick child, whereas Mr. and Mrs. Winsor are adults. Their inappropriate conduct toward Samantha, detailed at paragraphs 13, 16, 20, and 46 to 48 of the Judge’s decision and not necessary to repeat here, illustrate how the living situation at home was intolerable for Samantha. [18] A similar situation arose in Power (Guardian ad litem of) v. Power, 2008 NLUFC 21, 278 Nfld. & P.E.I.R. 265 wherein Butler J. ordered a father to pay child support to his adult daughter who was in pursuit of reasonable education and who had not voluntarily withdrawn from his care. At paragraph 4, Justice Butler referred to the earlier interim decision of O’Regan J. in the same case in which he determined that the adult child had not voluntarily withdrawn from her father’s care. In so doing he stated: … The choice to withdraw from parental control must be freely made and, therefore, cannot be voluntary if, by necessity, it is done to ensure … physical and mental well-being. I agree with this statement. Page: 7 [19] The record in this case amply supports the conclusion that the family situation at home was so disparaging of Samantha and otherwise volatile and challenging that she was effectively forced to leave her home. Moreover, Mr. Winsor has not shown that the Judge misinterpreted the evidence, or that he made palpable and overriding errors in his factual findings or the inferences he drew from the evidence. His determination that Samantha did not voluntarily withdraw from her father’s care has not been shown to be in error, and therefore stands. Was Samantha in pursuit of reasonable education? [20] The Judge found that it was by reason of Samantha’s illness and hospitalization that she had missed time from her course of study and had not been consistently enrolled in five courses each semester. He found that Samantha was disabled by reason of social anxiety, agoraphobia, and panic attacks, and concluded that her disability was a factor in determining whether her pursuit of education was reasonable, saying: [54] In other words, it is what a specific student, in this case Samantha, can manage given her particular circumstances that determines whether she is in pursuit of reasonable education. This would apply to how many semesters she can reasonably enroll in annually as well as the number of courses that she can reasonably enroll in in such semesters. [21] Mr. Winsor does not challenge the medical evidence respecting his daughter’s condition, or argue that the Judge’s decision had no evidentiary support. Rather, he argues that Samantha’s limited course enrollment and the fact that she was not enrolled full-time in every semester all year long made her pursuit of education unreasonable. He maintains Samantha should not be entitled to support for the semesters when she was not enrolled at university, or when she was enrolled but taking fewer than five courses, and says that if Samantha had taken her medication as prescribed she would not have been as disabled by her condition and would have been able to study full time. [22] In Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C.C.A.), at para. 15 the British Columbia Court of Appeal set out several factors to be considered in determining whether child support for an adult child attending post-secondary education should be ordered. They include age, whether the child was a full or part-time student, his or her career plan, academic performance, ability to self-support, educational expectations and plan, and Page: 8 whether the child unilaterally terminated relations with the parent. In Menegaldo v. Menegaldo, 2012 ONSC 2915, at para. 157, Chappel J., relied upon the decision of the Saskatchewan Court of Appeal in Geran v. Geran, 2011 SKCA 55, 371 Sask. R. 233 which determined that deciding the issue of entitlement requires determining whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child” and extended the Farden factors to include other factors considered by courts relevant to that determination. [23] What is pursuit of reasonable education involves considering all of the circumstances at play in a case, including the Farden and Menegaldo factors, as they relate to the adult child in issue. The “adult child” in section 37(7) of the FLA is not necessarily the healthy adult child with a part-time job, perfect full-time attendance, and high academic standing. Rather, that adult child is the particular child in issue, whose health, personal characteristics, abilities, and living circumstances inform what is pursuit of reasonable education in his or her case. A rigid requirement that nothing short of enrollment in five courses each semester of the year would fail to recognize the realities of the human condition, and therefore set too high a bar. In this regard I refer to Sullivan v. Sullivan (1999), 50 R.F.L. (4th) 326 (Ont. Div. Ct.) in which a trial judge’s award of child support to a 22-year- old unwell child engaged in a part-time course of study was upheld. Although Sullivan was based on Ontario legislation that is differently worded than section 37 of the FLA, it is apparent from the decision that the court was motivated to an appropriate result in consideration of the child’s illness and inability to undertake full-time studies. [24] Samantha had been consulting with a psychiatrist (who gave evidence at trial) for many years. Despite her serious health condition, she assiduously pursued her education, and was able to complete high school with assistance and the ability to do courses on-line. After high school, she was accepted into the science faculty at Memorial University, where she completed several courses despite health set-backs and periods of hospitalization. At the time of trial she was enrolled as a full-time student in Memorial University’s Bachelor of Nursing program. Despite her limitations and setbacks, Samantha’s medical condition had stabilized on her then-current medication regime, and she was completing her course work as required. Her health and personal circumstances had affected her ability to pursue her education, and the pace at which she could do so, but she Page: 9 persisted with her educational plan and is now succeeding in her studies and on an even course. [25] There is nothing in the record to show that the Judge’s determination that Samantha was in pursuit of reasonable education since 2013 was unreasonably arrived at or unsupported by credible evidence. The Judge’s decision shows that he considered all the appropriate factors, including those listed in Farden and Menegaldo, in the context of the presenting facts and circumstances, and that child support would enable Samantha to pursue an education so as to better her future prospects. [26] In the result, Mr. Winsor has not demonstrated that the Judge was in error in concluding that Samantha was in pursuit of reasonable education. Retroactive Support [27] The Judge found that Samantha was entitled to retroactive support for 2013 and 2014 because she was in pursuit of reasonable education during those years. Mr. Winsor says that the Judge erred in so finding, arguing that because Samantha was able to live on the monies she had available to her from social services, her needs were therefore met and he ought not to have to pay her support for those years. Mr. Winsor’s argument is effectively that if one manages to get by without receiving support, then that is proof that support was not really necessary, and therefore arrears should not have to be paid. [28] In D.B.S., at paragraph 133, the Supreme Court set out four criteria for a court to consider when deciding whether to award retroactive child support: (1) delay in applying for support, (2) blameworthiness on the part of the payor parent, (3) the present and past circumstances of the child, and (4) hardship occasioned to a payor by a retroactive award. [29] In this case, the retroactive support award was for 2013 and 2014, well after Samantha had applied for child support in 2012. Accordingly, there was no delay on Samantha’s part which would defeat a retroactive award for 2013 and 2014. [30] Mr. Winsor did not support Samantha after she left home. He was aware since 2012 that Samantha was seeking support and that he could well be ordered to pay it. Moreover, he was aware that his daughter was unwell. Page: 10 The record shows that he made no efforts to address the situation and in fact withdrew his initial agreement to participate in a settlement conference which resulted in delay of the trial to decide the litigation. His conduct toward Samantha and the litigation demonstrates blameworthiness. [31] Mr. Winsor did not plead undue hardship. Indeed his very substantial income and circumstances would hardly support such a position, given the trial judge’s findings that Mr. Winsor’s “most recent annual income exceeded $200,000” and his lifestyle including his personal expenditures was extravagant. [32] It is the third D.B.S. criterion that is at issue in this case, for Mr. Winsor rests his arrears argument on Samantha’s lack of need for support. In D.B.S., Bastarache J. had this to say about need: 113 Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.). This is not to suggest that the payor parent’s obligation will disappear where his/her children do not “need” his/her financial support. Nor do I believe trial judges should delve into the past to remedy all old familial injustices through child support awards; for instance, hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child. I offer these comments only to state that the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit. [33] In this case, Samantha’s need for child support from 2012 was clearly established. She lived an “extremely modest lifestyle” (as the Judge described it) dependent on government support in those years, and can hardly be said to have “enjoyed all the advantages she would have received had [one parent, let alone] both parents been supporting her” (D.B.S., at paragraph 113). The contrast between Samantha’s living circumstances and those of her father and Corinne and her sons (who also enjoyed the support of their own father), shows Samantha’s need for support was pressing (see paragraph 67 of the Judge’s decision). The fact that the state was assisting Samantha financially does not relieve her father of his responsibilities under section 37 of the FLA. Page: 11 [34] Application of the D.B.S. factors in this case endorses the Judge’s decision to award Samantha retroactive support for 2013 and 2014. I add only that retroactive support is not a windfall. Rather, it is some measure of compensation for what ought to have been awarded had the obligation to support been honoured when it arose or had the timing of judicial determination on support occurred earlier. In the result, Mr. Winsor has not shown that the Judge erred in exercising his discretion to award Samantha retroactive support for 2013 and 2014. Quantum of Support [35] Mr. Winsor also argues that the Judge erred in assessing Samantha’s living expenses. He maintains that the Judge arrived at an arbitrary figure of what Samantha’s expenses were based on what he thought was reasonable. [36] Section 3(2) of the Child Support Guidelines Regulations, NLR 40/98 provides how support for an adult child is to be determined. It states: (2) Unless otherwise provided under the guidelines, where a child to whom an order for support relates has attained the age of majority, that order is (a) the amount determined by applying the guidelines as if the child were under the age of majority; or (b) the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of that child. [37] The Judge relied on section 3(2)(b) in exercising his discretion to set Samantha’s living expenses in the manner he did, saying “after analyzing Samantha’s unique condition, means, needs and circumstances in conjunction with the cited jurisprudence, applying section 3(2)(b) would … achieve fairness and balance” (paragraph 64). He considered the evidence respecting Samantha’s living expenses for 2013, observing that her estimate showed an “extremely modest lifestyle”, and exercised his discretion to set her 2013 monthly living expenses at $2,000. To this figure he added her educational expense of $1,560.49 and from that total he subtracted her total income from grants, loans, and income support which calculated to a shortfall of $10,042.62. He then divided the shortfall by 12 (months), and arrived at a figure of $837.00 per month for 2013 child support. Page: 12 [38] The Judge employed the same methodology for 2014, using the same estimate of $2,000 per month for Samantha’s living expenses, and the actual 2014 figures for her educational expenses. For 2014, he calculated payable child support to be $858.00 per month. [39] The Judge determined Samantha’s prospective child support using the same approach and the known financial information, saying that the most reasonable way to predict her unknown future expenses was to rely on past information. He calculated Samantha’s expenses for 2015 at $27,624.74, from which he subtracted $13,058.40 for her anticipated Advanced Skills and Disability income for 2015, leaving a shortfall of $14,566.34 which, when divided by 12, computed to a $1,214.00 monthly support award payable by her father. The Judge then ordered the same monthly support amount for Samantha “until [she] completes her B. Sc.” [40] The Judge heard much evidence from Samantha, who testified “in great detail” about her circumstances and expenses and whose evidence was supported by documentary evidence respecting her expenses, tax returns, loans and grants. It was after considering all of the evidence, that he set her living expenses, both past and future, at $2,000 per month. [41] Setting an appropriate amount for post-secondary and living expenses on which to base a support award under section 3(2)(b) is not an exact science. It necessarily involves the exercise of discretion. In Dunn v. Dunn, 2013 NLTD(F) 7, 335 Nfld. & P.E.I.R. 179, Fry J., in determining support for a post-secondary student of divorced parents who was studying outside of the province, explained at paragraph 71: I am using the discretion granted to me pursuant to section 3(2)(b) to determine an appropriate amount of shareable post-secondary expenses using a combination of a budget driven approach, a comparison of costs at a local university as well as using actual tuition costs from Ryerson. I have considered the necessity of the expenditure as well as the reasonableness of the expenditure. I have also factored into my decision the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child in arriving at what I think is an appropriate amount in all of the circumstances. The Judge in this case did much the same thing. In my view, his exercise of discretion must be accorded deference unless it can be shown to “disclose an Page: 13 error in principle, a significant misapprehension of the evidence or [be] clearly wrong” (Hickey, at paragraphs 10 and 11). [42] Mr. Winsor has not pointed to any error in principle or misapprehension of the evidence which would serve to undermine the Judge’s discretionary decision respecting Samantha’s living expenses, nor has he shown it to be clearly wrong. Accordingly, the Judge’s determinations of Samantha’s past and future expenses stand. Termination Date [43] Mr. Winsor argues that the Judge erred in failing to provide a review mechanism or termination date for his payment of child support to Samantha. He maintains that the Judge’s decision that Samantha is entitled to “child support from 2015 until, at least, she obtains her B. Sc.” means that Samantha is at liberty to complete her program of study at her leisure without any obligation to keep her father informed of her academic enrollment or progress, health condition, or employment status. Mr. Winsor argues this is unfair to him as it results in “a grossly unfair outcome” where he could be liable for Samantha’s support indefinitely. [44] I agree with Mr. Winsor’s view that the Judge’s order could result in an unfairness to him. Its open-endedness makes it possible for Samantha to take her time to complete her degree without having to perform academically or account to her father in any way. [45] It seems to me reasonable for Mr. Winsor to expect that, if he is paying child support because Samantha is “in pursuit of reasonable education”, he ought to be assured that she is in fact “in pursuit of reasonable education”. Accordingly, I would order that Samantha provide to her father, through counsel if she prefers, formal indication that she is in good standing and proceeding with her program at university, along with a copy of her annual tax return and information respecting any grants and/or bursaries (not loans) she may receive on May 1 of each calendar year. I would also order that child support for Samantha cease two months following her formal graduation from Memorial University with her Bachelor of Nursing degree. The fact that Samantha does not attend university every month of the year does not relieve Mr. Winsor of his monthly support obligation. I would also caution him to be cognizant of his Page: 14 daughter’s health limitations and the fact that she may occasionally falter in her course of study before seeking to amend the support order. [46] In the result, I would dismiss Mr. Winsor’s appeal except as set out in paragraph 45 above. Costs [47] Two issues respecting costs at trial arise on appeal. The first is the appropriateness of the Judge’s lump sum costs award against Mr. Winsor and the second is the significance to the award of Samantha being represented by Legal Aid. There is also an issue as to what costs should be awarded on appeal. [48] Section 53 of the Judicature Act empowers judges, in the exercise of their discretion, to award costs to a litigating party. When costs are awarded to a party, they belong to that party (Mark M. Orkin, The Law of Costs, 2d. ed., looseleaf (Aurora: Canada Law Book, 1987) at § 204). [49] Rule F33.05 of the Rules of the Supreme Court, 1986, Part IV gives discretion to a trial judge to award lump sum costs instead of taxed costs. There is no presumption favoring one type of award over the other. Application of the roughly equivalent rule (55.02(1)) was fully discussed by Green C.J.N.L. in Anstey v. St. John’s (City), 2014 NLCA 35, 356 Nfld. & P.E.I.R. 117, at paras. 58-62. In summary, practicality is the governing principle in awarding lump sum costs, with fairness presumed. The Appropriateness of the Judge’s Lump Sum Costs Award [50] In this case, the Judge awarded Samantha lump sum costs of $5,000. At the appeal hearing, Mr. Winsor’s counsel indicated that should this Court uphold the Judge’s decision on the merits and award costs, his lump sum award was appropriate. [51] The Judge did not advert to any of the factors that are normally considered when determining whether to order lump sum costs. Nevertheless, the lengthy proceedings (Anstey, at paragraph 58), the delay in getting the matter to trial (Anstey, at paragraph 59), and the fact that a lump sum award minimized further litigation by preventing a taxation hearing (Anstey, at paragraph 62) make a lump sum award appropriate. Minimizing Page: 15 litigation in the circumstances of the strained relationship between Samantha and her father would avoid additional conflict and expense, and could serve to afford some measure of closure for them. [52] Mr. Winsor argues that because Samantha was represented by Legal Aid counsel, she did not incur costs so he should not be ordered to pay any. [53] Legal Aid services do have a cost and are not necessarily free to clients. Section 45(1) of the Legal Aid Act, RSNL 1990, c. L-11 (Act) stipulates that when a Legal Aid client recovers costs, the costs shall be paid to the Legal Aid Commission. Section 45(6) of the Act would require Samantha’s counsel to pay the costs award to the Commission. However, that does not mean that the Commission has to keep all or any of a Legal Aid client’s costs award. Section 13(e) of the Act empowers the Commission to “generally do all things which the Commission considers necessary, convenient or advisable for or incidental to the exercise of the powers, functions and duties of the Commission”. The Commission thereby has the power to waive or reduce all or part of Samantha’s costs award, as counsel for Samantha indicated at the appeal hearing was a possible result in this case. Such arrangements are private matters between Legal Aid and its clients which are not normally an issue in ordering costs, just like fee arrangements between private counsel and their clients are private matters and not normally an issue in ordering costs. [54] Section 45 of the Act contemplates costs awards to Legal Aid clients, and therefore supports the proposition that Legal Aid clients ought not to be denied costs awards in appropriate cases. [55] The policy objectives behind costs awards are as important a consideration. Costs awards serve various purposes, as the Supreme Court recognized in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, wherein LeBel J. stated at paragraphs 25 and 26: … modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer; this policy has been codified in the rules of court of many provinces (see, e.g., Supreme Court of British Columbia Rules of Court, Rule 37(23) to 37(26); Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49.10; Manitoba Queen’s Bench Rules, Man. Reg. 553/88, Rule 49.10). Costs can also be used to sanction behaviour that Page: 16 increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. Indeed, the traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. Because costs awards transfer some of the winner’s litigation expenses to the loser rather than leaving each party’s expenses where they fall (as is done in jurisdictions without costs rules), they act as a disincentive to those who might be tempted to harass others with meritless claims. And because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court’s concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs. [56] In Cabana v. Newfoundland and Labrador, 2016 NLCA 75, Green C.J.N.L. also recognized that costs awards serve various purposes, and identified fostering settlement of litigation as one (paragraph 26). This purpose would be defeated if a litigating party could rely on not having to pay costs because its opposite party was represented by Legal Aid. [57] In addition to the above, the potential for being awarded costs is a legitimate consideration for clients and their counsel, in this case Legal Aid counsel, when deciding whether to initiate litigation. The potential for Legal Aid to receive some reimbursement for their services may well make the difference in its decision to represent a client or file a suit. Accordingly, to deny costs orders to clients who are represented by Legal Aid could deny deserving clients access to justice. [58] Access to justice was recognized as a legitimate objective of costs awards by the Ontario Court of Appeal in 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 82 O.R. (3d) 757 (Ont. C.A.). In Ontario the Court decided that a client represented by pro bono counsel could be awarded costs. In so doing, Feldman, J.A. stated at paragraph 35: … allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positive consequences: (1) it ensures that both the non-pro bono party and the pro bono party know that they are not free to abuse the system without fear of the sanction of an award of costs; and (2) it promotes Page: 17 access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases. I agree with this reasoning, and say it is equally applicable to parties represented by Legal Aid. [59] In regard to the various purposes of costs orders, also see Orkin, § 204. [60] In this case, I see no reason why Mr. Winsor’s intransigent approach to Samantha’s suit ought to be rewarded by relieving him of the Judge’s order to pay costs of $5,000 to Samantha. I note that his practical costs award is arguably less than what would have been awarded under the tariff. I would not disturb it. Costs on Appeal [61] With respect to costs on appeal, rule 58(1) of the Court of Appeal Rules also allows for lump sum costs awards. At the appeal hearing, counsel for Mr. Winsor indicated she favored an order for taxed costs rather than a lump sum award, although she stated that she would not be opposed to a lump sum award as it would minimize litigation. For the same reasons given above, I would order that Mr. Winsor pay the lump sum of $1,500.00 to Samantha for costs of the appeal. [62] I add that I cannot agree with the suggestion of my colleague Welsh J.A., that if the Court proposes to depart from an order for taxed costs on column 3 of the scale of costs and to award costs on a different scale or by way of lump or fixed sum, the parties should be given notice and opportunity to be heard. Such an approach unnecessarily formalizes a matter that is by its nature highly discretionary and generally regarded as incidental to a merits determination, and could lengthen proceedings or even require an additional hearing in some cases. [63] Parties know that costs are always an issue in litigation and that the Court can exercise its discretion to award them in differing ways. Parties always have the opportunity to make submissions on costs as part of their oral and written arguments and ought to assist the Court by doing so. If they do not do so, they effectively consign costs determinations to the Court’s discretion. Page: 18 DISPOSITION [64] I would dismiss Mr. Winsor’s appeal except that I would order Samantha to provide her father, through counsel if she prefers, on May 1 of each calendar year: 1) formal indication that she is in good standing and proceeding with her program at university; 2) a copy of her annual tax return; and 3) information respecting any grants and/or bursaries she may have received. I would also order that child support for Samantha cease two months following her formal graduation from Memorial University with her Bachelor of Nursing degree. [65] I would order that Mr. Winsor pay Samantha the lump sum of $1,500.00 for costs of the appeal. _________________________ L. R. Hoegg J.A. Separate Concurring Reasons by Green C.J.N.L.: [66] I agree with the disposition proposed by my colleague, Hoegg J.A. and the reasons given by her. [67] I wish, however, to add some comments about the scope of the obligation of a parent to support a child, particularly an adult dependent child, in the context of the role of the state in providing services to such a child, where the nature and scope of the child’s needs extend beyond what could be considered ordinary expected levels such as food, shelter, clothing and education on a short- or medium- term basis. [68] In this case, with respect to the issue whether an order should be made for retroactive support, counsel for Mr. Winsor submitted, amongst Page: 19 other things, that there was no need to make a retroactive order because Samantha’s needs had been adequately met by the state assistance she had received during the period in question. Counsel for Ms. Winsor countered with the submission, based on section 37 of the Family Law Act, that because “[e]very parent has an obligation, to the extent that the parent is capable of doing so, to provide support to his or her child,” it was not the state’s role to financially support a child when there is a parent who can afford to pay child support. It was, accordingly, the “first role” of the financially able parent to provide that support and that he or she cannot be shielded from that obligation by relying on potentially available state assistance. [69] I generally agree with the submissions of counsel for Ms. Winsor in this regard and this is reflected in my agreement with the statement made by my colleague in paragraph 33 above that “the fact that the state was assisting Samantha financially does not relieve her father of his responsibilities under section 37 of the FLA.” However, I would not want it to be inferred from that statement that a parent must exhaust all of his or her resources before there is any obligation on the part of the state to step in and help. This is especially true where the individual in question is a child, including an adult dependent child, who is disabled or otherwise seriously disadvantaged and whose care may require substantial financial assistance to provide a basic quality of life. There is a role for the state to play in assisting such children that is not dependent upon an obligation of a parent primarily to contribute to such support. Otherwise, a parent, in a severe case, will find him- or her- self reduced to financial destitution – to the detriment of his or her family, including possible other children – before the state’s role in levelling the playing field for its disadvantaged citizens kicks in. [70] Applied to the issue of the obligation to pay retroactive support, it follows that while a parent cannot escape a responsibility to pay simply because the state had already stepped in, there is also no automatic obligation on the part of a parent to pay retroactive support in an amount calculated by reference to reimbursement of the full quantum of state funds that may have been expended. A lot will depend on the degree of support that is regarded as reasonable for the parent to be responsible for. (Indeed, even in an ordinary case, i.e. one that does not require expenditure for special or extraordinary needs, it does not follow that a parent is necessarily obligated to pay the full educational costs of an adult dependent child without, for example, making payment conditional on the child contributing, Page: 20 to the extent he or she is able (through summer employment, etc.) towards those costs. Much will depend on reasonableness in a given case.) This can be recognized, I believe, in the multi-factor approach set out in D.B.S., particularly the requirement to take account of the past and present circumstances of the child and the potential hardship to the payor. [71] Subject to these observations, I am in full agreement with the results, on the facts of this case, of the analysis of Hoegg J.A. _________________________ J.D. Green C.J.N.L. Reasons Dissenting in part by Welsh J.A.: [72] With the exception of the question of costs, I agree with the decision of Hoegg J.A. Regarding costs, the application of the Legal Aid Act must be considered because Ms. Winsor was represented by counsel for the Legal Aid Commission. [73] Under section 45(1), costs awarded by the Court must be paid to the Commission: Where a client recovers costs in respect of the matter or proceeding for which a legal aid certificate was issued under a judgment or order of a court or administrative board or tribunal, the costs shall be paid to the commission. [74] However, by virtue of the operation of section 45(3), the amount claimed by the Commission for its costs may exceed the award for costs made by the Court: Where a client recovers under a judgment, order, settlement, or otherwise a sum in respect of the proceedings for which a legal aid certificate was issued, he or she shall pay to the commission an amount equal to the cost to the commission of providing legal aid under this Act and the regulations, less the amount paid or payable under subsection (1). [75] To avoid reducing the amount a child receives for support, subsection (3) does not apply to child support orders. Section 45(4.1) provides: Page: 21 Subsections (3) and (4) do not apply to judgments, orders or settlements relating to child support or spousal support. The rationale for this exception is to ensure that monies intended for child support are not used to pay legal expenses incurred by the Legal Aid Commission. (See: Hansard: House of Assembly Proceedings, June 16, 2015, volume XLVII No. 32, comments of Minister Parsons and M.H.A. Rogers.) [76] The purposes for which costs are awarded by the courts are discussed in Orkin, The Law of Costs, looseleaf edition, 2017 (Aurora: Canada Law Book), at section 201. The fundamental principle is (page 2-8): Costs are intended to indemnify the party to whom they are awarded for the costs which the party must pay to his or her own lawyer. The degree of such indemnification can, perhaps, never be complete. Partial indemnification is intended by the usual award of party-and-party costs, sometimes called the tariff scale. … [77] Other purposes that may be relevant to making an order for costs, identified by Orkin, are: “to encourage settlement, to deter frivolous actions and defences, and to discourage unnecessary steps that unduly prolong the litigation” (The Law of Costs, at page 2-8). [78] Rule 58(1) of the Court of Appeal Rules provides that the Court may “make such order as to costs as it considers appropriate, including an order for a lump sum payment or an order on a basis other than is provided in the scale of costs”. The scale of costs provides for specified costs for particular services under five columns, with the default being column three. Where there are reasons for an award of increased costs beyond the normal column three party and party costs, an award under column four or five or an award of solicitor and client costs may be appropriate. [79] Section 45(6) of the Act specifies that monies paid under a costs order must be paid directly to the Commission: Where a solicitor is in possession of an amount in respect of costs referred to in subsection (1), whether in trust or otherwise, he or she shall pay the amount to the commission and not to his or her client. [80] Section 45(10) provides for circumstances where a costs order exceeds the costs incurred by the Commission: Page: 22 A client shall be refunded money received or recovered by the fund for costs in excess of the actual cost to the commission. [81] In this case, in her factum on the appeal, counsel for Ms. Winsor requested an order for costs without further explanation. Normally, this would result in an order for party and party costs under column three of the scale of costs. If a party is seeking an order for costs on a different column in the scale of costs or on a different basis, such as by means of a lump sum, a specific basis for the request should be provided to the Court. In the case of a lump sum, the quantum should be specified. This will ensure that the party having to pay the costs has notice and an opportunity to be heard. It also ensures that an appropriate quantum is ordered. [82] Reliance on considered submissions of counsel, having had an opportunity to discuss the matter with their clients, cannot be overstated. It cannot be assumed that a lump sum payment will have a positive effect by eliminating the need for further contact between the parties. Indeed, it may have the opposite effect of increasing tension if a party feels he or she has not been given a fair hearing and an opportunity to make submissions on the point. [83] In this case, on appeal, counsel did not request a lump sum in costs, did not have the opportunity to confer with their clients, and did not suggest a quantum if a lump sum was to be awarded. Further, because Ms. Winsor is represented by counsel, the taxation of costs would be handled by counsel for the Commission and should not result in additional stress for Ms. Winsor. Finally, this was a situation in which a lump sum in costs was awarded in the Trial Division. It can be inferred that, if the same was sought on the appeal, appropriate submissions would have been made. [84] I note in passing that rule F33.05 of the Rules of the Supreme Court, 1986, under Part IV, Trial Division Family Rules, which applies to proceedings in the Supreme Court, Trial Division, provides the option of a fixed sum of money to be paid instead of taxed costs. Pursuant to rule F33.05(2): In determining whether to make an order pursuant to subrule (1) [a fixed sum] the judge must consider: (a) the importance, complexity, or difficulty of the issues; Page: 23 (b) the reasonableness or unreasonableness of each party’s behaviour in the proceeding; (c) the lawyer’s fees, if a party is represented by a lawyer; (d) the time properly spent on the proceeding, including (i) discussions between the parties, their lawyers, and any witnesses, (ii) drafting documents, (iii) attempting to settle the matter and preparing for and attending any application or hearing, and (iv) preparing any order; (e) expenses properly paid or payable; and (f) any other relevant matter. In applying this provision to proceedings in the Trial Division, the comments set out in paragraphs 81 to 83, above would apply. That is, the parties should have the opportunity to address the rationale for an award of a fixed sum rather than taxed costs, and should address the question of an appropriate quantum. The judge should provide some explanation where the parties are not in agreement. [85] Returning to the case under appeal, I would award Ms. Winsor party and party costs of the appeal under column three of the scale of costs. I would not interfere with the costs order in the Court appealed from. ___________________________________ B. G. Welsh J.A.