J.E.S. v. A.J.M.

J.E.S. v. A.J.M. Court Supreme Court Date 2008-12-04 Citation 2008 NSSC 366 Docket SFHMCA 31396 Judge/Registrar/Adjudicator MacDonald, Beryl (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: J. E. S. v. A. J. M., 2008 NSSC 366 Date: 20081204 Docket: SFHMCA-31396 Registry: Halifax Between: J. E. S. Applicant / Respondent v. A. J. M. Respondent / Applicant Judge: The Honourable Justice Beryl MacDonald Heard: September 15, 16 and 17, 2008, in Halifax, Nova Scotia Written Decision on Costs: December 4, 2008 Counsel: Tanya Jones, for the Applicant/Respondent Andrew Pavey, for the Respondent/Applicant By the Court: [1] On October 17, 2008 I provided my written decision in this matter and directed if costs were requested the parties were to provide written submissions within the filing dates provided in that decision. The Father has requested costs and I have reviewed the written submissions provided by counsel for both the Father and the Mother. [2] Costs are in the discretion of the Court but they generally are awarded to the successful party. The awarding of costs in family proceedings is complicated because it is often difficult to determine who is the successful party. In these cases there is often divided success. In addition, many of the issues arising in family proceedings are not “capable of being quantified in money”. (Kennedy-Dowell v. Dowell, 2002 NSSF 50(CanLII) However a party should not be deprived of his or her costs in a case when a determination about “success” can be made except for “a very good reason”. (Bennett v. Bennett (1981), 49 N.S.R. (2d) 683 (NSTD) [3] The amount of a cost award should “represent a substantial contribution towards the parties’ reasonable expenses in presenting or defending the proceeding, but should not amount to a complete indemnity” (Landymore v. Hardy, 1992 Carswell NS 90). The ability of a party to pay a cost award is a factor that can be considered. (Kaye v. Campbell (1984), 65 N.S.R. (2d) 173 (NSCA); but as noted by Judge Dyer in M.C.Q. v. P.L.T. 2005 NSFC 27: Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves (because of public or third-party funding) but at a large expense to others who must “pay their own way”. In such cases, fairness may dictate that the successful party’s recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65]. [4] In this case although the Father “was not successful in obtaining all the relief he sought, it would be an exaggeration to say that success was divided....[h]e was, by and large, the successful party”. (Voiculescu v.Voiculescu, [2003] N.S.J. No.467) [5] The Mother initially requested she have primary care of the child. Once she received the assessment report she took the position that the shared parenting arrangement set out in the order of Justice Williams should continue. She suggested that, as a result of the report, she had corrected her parenting deficiencies and now could share parenting with the Father without conflict. These were her statements. She produced no evidence to corroborate her changed behaviour and attitudes. Her testimony in fact was contrary to her submission that she was a changed person. Her inability to accept the reality of her situation and possibly also the fact that she could continue this litigation with legal representation because she qualified for services offered by Nova Scotia Legal Aid resulted in a three day trial. She did not comply with filing requirements. Had she complied trial time would have been reduced. In addition to the Father’s cost of hiring counsel he paid, pursuant to the provisions of the Costs and Fees Act, $1,137.50 for the assessment conducted by the IWK assessment team. [6] While the Mother clearly had a “right” to litigate, does the nature of this proceeding and her limited income suggest she should not be required to pay any costs to the successful party? I am satisfied that even those of limited economic means should face cost consequences in appropriate circumstances. The facts of this case justify a limited cost award against the Mother. This is not an award against Nova Scotia Legal Aid as suggested by the Mother’s counsel. It is an award against her personally. [7] The Father requests a cost award in the amount of $4,000.00. His actual legal account is much higher. His request is reasonable although the amount requested cannot be said to constitute a substantial contribution toward his reasonable expenses. The request is appropriate after taking the Mother’s financial means into account. [8] In my decision I declined to relieve the Father from payment of child support arrears in the amount of $2,216.00. The Father suggests this amount be set off against the cost award leaving a balance owing of $1,784.00. He requests this amount be paid within one year by installments of approximately $150.00 per month. The Mother objects to a cost award and to any set off. [9] If I do not permit the set off of the arrears against the cost award an injustice will likely occur. Maintenance Enforcement may not enforce the collection of an award for costs not directly related to a “maintenance order” as that phrase is defined in section 2(e) of the Maintenance Enforcement Act S.N.S. 1994-1995, c.6. Given the Mother’s low income the Father may not be able to garnish her wage or use other collection mechanisms to be paid his cost award. The Mother will receive money from the Father in payment of the arrears and she may not use this money to pay her cost award. I consider it appropriate to take a practical approach to alleviate this potential unfairness by directing that, as a result of the cost award to the Father, his child support arrears are not to be collected and are forgiven. The balance of the cost award will be due from the Mother to the Father to be paid by her either by lump sum, periodically, or as a result of a collection procedure initiated by the Father. If counsel determine that Maintenance Enforcement will enforce the collection of the cost award the order is to direct payment of the remainder of the cost award by way of installments of $75.00 per month. _____________________________________ Beryl MacDonald, J.