This Month in Nova Scotia Family Law – January 2023

February 2, 2023
Savoie v Daye, 2022 NSCC 382
Justice Cindy G. Cormier
Subject matter: Costs

This is an endorsement on costs. The parties had multiple previous appearances including judicial settlement discussions. They agreed on most issues. However, there were three outstanding issues that required a trial which lasted almost a day and a half.

At trial, no new information was proffered to determine the outcome of the remaining issues. As such, Justice Cormier relied on documents the parties disclosed at the time of their separation and the Partial Corollary Relief Order previously issued. Justice Cormier suggested that Ms. Daye to file a motion for disclosure which could have changed the outcome of the trial. However, Ms. Daye never filed.

In reaching a decision, Justice Cormier reiterated that pursuant to Civil Procedure Rule 77 costs should do justice between the parties.  Her Ladyship quoted from Nurse v Holden, 2020 NSSC 110 which indicated that the Court has discretion to raise or lower the tariff amount depending on the “conduct of the parties if it affects the speed or expense of the proceeding”.

Justice Cormier indicated that Ms. Daye’s behaviour complicated the proceeding. To support this finding, Her Ladyship listed five instances where Ms. Daye did not follow the court’s direction. Additionally, Justice Cormier found that Mr. Savoie could have disclosed information, which would have expedited the proceeding, but chose not to. As such, both parties contributed to the speed and expense of the matter.

Justice Cormier found that Mr. Savoie was successful on two of the three issues. Her Ladyship used Tariff A, Scale 3 to determine that $7,000 was the appropriate costs award for the proceeding. However, Her Ladyship reduced Mr. Savoie’s award due to his contribution to the expense. Of the $7,000 total award, Justice Cormier ordered Ms. Daye to pay Mr. Savoie $3,499.83.

Henderson v Henderson, 2023 NSSC 22
Justice Theresa M Forgeron
Subject matter: Costs

Ms. Henderson and Mr. Henderson disagreed on the appropriate costs award following their divorce proceeding. Ms. Henderson, the successful party, sought $6,117.76 in costs. Ms. Henderson claimed that Mr. Henderson’s conduct was unreasonable and unnecessarily prolonged the litigation. Additionally, Ms. Henderson indicated that her settlement offer mirrored Justice Forgeron’s decision. For his part, Mr. Henderson indicated that his financial situation would preclude payment and any payment to his ex-wife would take away from his ability to care for their children.

In reviewing the positions provided by the parties and Rule 77, Justice Forgeron awarded $5,500 to Ms. Henderson. Justice Forgeron indicated that this would do justice between the parties for three reasons. First, as a successful party, Ms. Henderson should not be deprived of costs. Secondly, a lump sum is appropriate as prospective, periodic child support is difficult to quantify. Lastly, this amount would substantially contribute to Ms. Henderson’s reasonable legal fees which Justice Forgeron noted were charged to her at a discounted rate.

Justice Forgeron indicated that the settlement offer could not be considered in a judicial decision, pursuant to Civil Procedure Rules 10.03, 10.16 and 77.07.

Justice Forgeron did not accept Mr. Henderson’s argument that paying costs will hinder his ability to support the children. Her Ladyship indicated that Mr. Henderson can adjust his “budget and lifestyle” to incorporate the costs payment. Additionally, Justice Forgeron indicated that Mr. Henderson could have applied for relief from a costs award by making a motion pursuant to Civil Procedure Rule 77.04 but he did not.

Lenihan v Bailey, 2023 NSSC 30
Justice Cindy G. Cormier
Subject matter: Costs

The parties had many appearances before the Court. Many of which were caused by Mr. Lenihan. This endorsement deals with 7 appearances held between December 2020 and October 2021 and correspondence sent to Justice Cormier following the October 2021 appearance.

Ms. Bailey requested an award of 80% of her solicitor fees which totaled $17,987.61.

The parties’ children were 20, 17 and 15 in December 2020. The children decided to live with their mother full time. This caused them to be in noncompliance of the shared parenting agreement. As a result, Mr. Lenihan brought an unsuccessful application for sole custody of the youngest child. Justice Cormier found that it was in the child’s best interests, given their age, and Mr. Lenihan’s parenting style, to continue to reside primarily with Ms. Bailey and their siblings.

The parties had 5 appearances between the application to vary the custody order in December 2020 and the trial in October 2021.

During the second day of trial, Mr. Lenihan’s cross-examination of Ms. Bailey continued. He suggested it would take an hour. However, it took longer. Additionally, he brought an application for undue hardship without first giving notice to Ms. Bailey. Justice Cormier found that given his annual income of $80,000, his application would likely be unsuccessful.

In December 2021, Mr. Lenihan sent a letter to Justice Cormier suggesting that Her Ladyship forgot to address the application. As a result, Justice Cormier was forced to listen to the court audio of the trial. Additionally, the letter questioned the period of retroactivity of child support which had been previously agreed to on the record. Finally, the letter questioned whether Justice Cormier should have taken the child support payments for the two youngest children when accounting for the post-secondary expenses for the oldest child. Her Ladyship did not accept this suggestion.

Justice Cormier quoted Civil Procedure Rule 77.07(3) to indicate that costs follow the result of a proceeding. Her Ladyship also quoted Rules 77.02(1) which gives a judge the power to make an order about costs “which will do justice between the parties” and 77.02(2) which gives judges the general discretion in making the order.

All of these appearances totaled almost 2 court days. Justice Cormier considered the court time along with the Tariff A, Scale 3 amount and the court amount per day to arrive at a costs award of $13,063, which equalled just over 70% of Ms. Bailey’s legal bill. Mr. Lenihan was ordered to pay this forthwith.


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