This Month in Nova Scotia Family Law – January 2023
Our NS Family Law team provides summaries of recent cases which have appeared in the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal. Here are the cases from January 2023.read more
Issues: High conflict | Supervised parenting time | Make up parenting time
The parties have a seven-year old child together and have a high conflict parenting relationship. Their most recent Interim Order provided they share joint custody over the child with EW having primary care. BG had parenting time every Monday after school and overnight from Saturday at noon until Sunday at noon. EW sought to change this order, requesting sole custody and decision making authority. BG sought shared custody and shared decision making authority.
Prior to the COVID-19 pandemic, BG’s parenting time was facilitated by the Minister of Community Services due to concerns over emotional impacts on the child. In March 2020, Community Services no longer had the ability to facilitate parenting time and EW terminated BG’s access. There was only phone contact between BG and the child for the next 11 months. Shortly before this hearing, BG’s mother began to facilitate access. In the past, BG’s mother had been the child’s primary care giver until EW resumed this responsibility.
With consideration to the best interests of the child, the court decided to incorporate the terms of the Interim Order into a final Order with the following additions: EW is to have decision making authority over the child; BG will receive additional parenting time effective July, 2021 to November, 2021 for six additional hours during her over nights; during school breaks, parenting time will begin on Monday’s at noon until 6:00pm; EW must enroll the child in counselling to ensure she has emotional support; and EW must complete eight hours of counselling to assist him with parenting in a high conflict situation. BG’s mother is to facilitate BG’s parenting time.
The main factors in this decision were: the child’s sense of stability, having lived with EW for the majority of her life; BG’s instability and reluctance to participate in recommended cognitive behavioral therapy and EW encouraging a relationship with BG’s family. In response to the decision, BG asked the court not to punish her for her for having a mental illness. The court stated that the parenting time reflected the best interests of the child considering the evidence and the applicable legislation.
This is a decision regarding costs. The Father filed for divorce and an interim parenting order in 2018. The parties participated in several court conferences, settlement conferences and a lengthy hearing to resolve issues relating to parenting time and child support. A trial decision was released in February, 2020. The Mother’s legal fees, disbursements and portion of their Parental Capacity Assessment, totaled $61,766.15. She sought costs on the basis that she was the successful party and wished to deter further appeals and motions by the Father. She sought costs from the date she provided the Father with a settlement offer. The Father argued that a future review date in the Order signified that it was not final and therefore he could be the successful party. It was also his position that future appeals should not be considered in assessing costs.
Justice Forgeron acknowledged that costs are governed by NS Civil procedure Rule 77 and the decision in Armoyan v Armoyan. Costs have the objective of doing justice for the parties. They are intended to cover a substantial amount of a party’s legal fees which is in the range of 50% -100%. Costs are quantified according to the tariffs for predictability. However, there are opportunities for courts to use their discretion to raise or lower these amounts when appropriate. Justice Forgeron ordered the Father to pay $40,882.00 in costs by lump sum determined by the following calculations: $19,113 x 80% = $15,290.40 representing 80% of the Mother’s legal fees and disbursements incurred after she filed her pre-trial brief; and $42,653.15 x 60% = $25,591.89, representing 60% of the Mother’s legal fees and disbursements incurred before the hearing.
The reasons for the order were as follows: The Mother’s legal fees were considered reasonable. She was self-represented at times to reduce her legal fees and the matter involved extensive litigation. The rule of thumb approach was rejected as being outdated and arbitrarily assigned. The matter was considered important and complex given the subject matter, it’s progression and the evidence called in the hearing. The Father refused a settlement offer that provided him with more favorable parenting time and child support arrangements. Lastly, for the Father’s role in increasing costs by promoting unproven claims of parental alienation, providing inadequate income information and pursuing other baseless claims for primary care and reduced child support.
If you have any specific questions regarding this month’s case summaries or if you require legal services, a member of our team would be happy to assist you.
This case summary was prepared with contributions from Dominique Perinchief, Articled Clerk.