Lubin v. Lubin

Lubin v. Lubin Court Supreme Court Date 2012-03-06 Citation 2012 NSSC 93 Docket 1201-064422, SFHD-069303 Judge/Registrar/Adjudicator MacDonald, Beryl (Honourable Justice) Document Type Decision Relations Library Sheet - Lubin v. Lubin - 2012 NSSC 93 - 2012-03-06 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Lubin v. Lubin, 2012 NSSC 93 Date: 20120306 Docket: 1201-064422, SFHD-069303 Registry: Halifax Between: Sonia Rene Lubin Applicant/Petitioner v. Samile Junior Lubin Respondent Judge: The Honourable Justice Beryl MacDonald Written Submissions: February 7, 2012 from Owen Bland February 21, 2012 from Angela Walker February 28, 2012 from Owen Bland Counsel: Angela Walker, counsel for the Applicant/Petitioner Owen Bland, counsel for the Respondent By the Court: [1] On January 19, 2012 I completed a written decision following a two day hearing for determination of the custodial arrangement for the parties 14 year old son, child support, and division of assets and debts. I invited the parties to make submissions in respect to costs. I have received and evaluated those submissions. [2] I have reviewed the Civil Procedure Rules and several decisions commenting on costs, including Landymore v. Hardy (1992), 112 N.S.R. (2d) 410 (T.D.); Campbell v. Jones et al. (2001), 197 N.S.R. (2d) 212 (T.D.); Grant v. Grant (2000) , 200 N.S.R. (2d) 173 (T.D.); Bennett v. Bennett (1981), 45 N.S.R. (2d) 683 (T.D.); Kaye v. Campbell (1984), 65 N.S.R. (2d) 173 (T.D.); Kennedy-Dowell v. Dowell 2002 CarswellNS 487; Urquhart v. Urquhart (1998), 169 N.S.R. (2d) 134 (T.D.)); Jachimowicz v. Jachimowicz (2007), 258 N.S.R. (2d) 304 (T.D.) [3] Several principles emerge from the Rules and the case law: 1. Costs are in the discretion of the Court. 2. A successful party is generally entitled to a cost award. 3. A decision not to award costs must be for a “very good reason” and be based on principle. 4. Deference to the best interests of a child, misconduct, oppressive and vexatious conduct, misuse of the court’s time, unnecessarily increasing costs to a party, and failure to disclose information may justify a decision not to award costs to a otherwise successful party or to reduce a cost award. 5. The amount of a party and party 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”. 6. The ability of a party to pay a cost award is a factor that can be considered ; 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].” 7. The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8. In the first analysis the “amount involved”, required for the application of the tariffs and for the general consideration of quantum, is the dollar amount awarded to the successful party at trial. If the trial did not involve a money amount other factors apply. The nature of matrimonial proceedings may complicate or preclude the determination of the “amount involved”. 9. When determining the “amount involved” proves difficult or impossible the court may use a “rule of thumb” by equating each day of trial to an amount of $20,000.00 in order to determine the “amount involved” . 10. If the award determined by the tariff does not represent a substantial contribution towards the parties’ reasonable expenses “it is preferable not to increase artificially the “amount involved”, but rather, to award a lump sum”. However, departure from the tariff should be infrequent. 11. In determining what are “reasonable expenses”, the fees billed to a successful party may be considered but this is only one factor among many to be reviewed. 12. When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and also examine the reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court. [4] The Mother in this proceeding requests costs in the lump sum amount of $20,000.00. Her total legal account, including disbursements is $25, 222.00. The Father requests no award of costs to either party and he argues that the lump sum amount requested is an indemnity similar to solicitor and client costs. [5] During the hearing the Mother argued she should have week about shared parenting, retroactive child support, and an equal division of assets and debts. She did not accept the Father’s valuation of the BMW and the Honda CRV. She did not accept there was a debt owing against the Honda CRV, and against the BMW. She did not consider the cash advances on the Father’s Scotia Bank Visa to be a matrimonial debt. She did not consider the amounts owing on the Father’s MBNA credit card and the loan on her life insurance policy to be matrimonial debts. She rejected the suggestion that she should reimburse the Father for mortgage and insurance payments made after the date of their separation. The Father did not accept the Mother’s Master Card and student loan debt as matrimonial. He requested joint custody and primary care of their son. [6] In my decision I determined the parties son should be parented under a joint custodial arrangement with each having some defined decision-making roles and providing shared residential care. I consider this portion of my decision to be a success arising from the evidence and submissions put forward by the Mother. While I did not accept her particular schedule for shared parenting, I built upon what she was seeking by way of a residential and custodial plan that she considered to be in the best interest of their son. It was clear to me the Father did not even consider shared parenting alternatives and that while he gave lip service to the concept of joint decision-making my concern was that he would not meaningfully consult with the Mother and this led to my devising a very detailed order in respect to decision-making. [7] To be a successful party in cases involving parenting arrangements does not mean that a parent must succeed on every point raised. Is the overall concept put forward by the parent that is most important. I consider the Mother to have been the successful party in respect to the parenting issue. [8] A review of my decision, which is reported as Lubin v Lubin, 2012 NSSC 31, will reveal my findings in respect to asset and debt division. While the Mothers evidence and submissions did not prevail on all issues I find her to be the successful party overall. [9] It is also important in evaluating the Mothers success during this hearing to consider my credibility findings. While I did not accept some of the evidence put forward by the Mother, more adverse credibility findings were made against the Father and in particular in respect to his evidence about the alleged loan against the Honda CRV. [10] There were several steps taken by the Father that unnecessarily increased costs to the Mother. She had to commence an application on an emergency basis to travel with her son during her vacation in the summer of 2010. During the preceding the Father alleged there was a debt owing to Chalet Realty. This required the Mother to subpoena a person with knowledge from that business to confirm no such debt existed. This fact should have been acknowledged by the Father well before the hearing. [11] Evaluating the entirety of this case I am satisfied that a lump sum cost award would be more appropriate than the tariff amount that would have provided a cost award of approximately $12,923.00. However the amount claimed by the Mother is approaching an indemnity that is not justified in this case. Costs are awarded to the Mother in the lump sum amount of $15,000.00. ____________________________ Beryl MacDonald J.S. C.