Supreme Court

SUPREME COURT OF Nova Scotia

FAMILY DIVISION

Citation: D.D. v M.P., 2023 NSSC 310

Date: 20231005

Docket: SFPAPSA-124254

Registry: Port Hawkesbury

Between:

D.D.

Applicant

v.

M.P.

Respondent

Decision on Costs

Introduction

[1]             By way of a written decision dated June 19, 2023, I dealt with the parties competing parenting plans with respect to the child D.D. Jr. and granted primary care and final decision making to the mother.

[2]             The hearing took place over two days.  Post trial submissions included the party’s position on costs.

[3]             In the written decision of June 19, 2023, I invited further submissions from the parties with respect to costs.  M.P’s submissions were to be filed by July 14, 2023.  D.D.’s submissions were to be filed by August 14, 2023.

[4]             No further submissions have been received.

Issue

[5]             Should costs be payable to the mother and if so, what amount?

Background

[6]             The proceeding’s history is set out in my written decision.  I will not review it in detail.  Both parties were represented by counsel throughout.

[7]             The matter was complicated by the allegation of the father that V.D. sexually abused the child D.D. Jr.  This was a central and key argument of the father’s case.  The issue of the presentation of the child witness evidence necessitated appearances, submissions and a separate ruling.

[8]             I found that the father had not proven, on the evidence, that V.D. had sexually abused D.D. Jr.

[9]             The mother was granted primary care, final decision making and residence.  The father was provided specific parenting time.

The Parties Position

[10]         The mother’s submission seeks costs payable to the Nova Scotia Legal Aid Commission.  She relies on Civil Procedures Rules s. 77.02(1)(2), 77.07 and related Caselaw.  She submits Tariff “C” is to be the appropriate Tariff but does not argue for a specific amount.

[11]         I will not review the father’s submission on costs in detail.  He was seeking $7,000.00 based on Tariff C.

[12]         Neither party provided further submissions though I invited the same.

The Law

[13]         Civil Procedure Rule 77 deals with the awarding of costs.  It gives the court wide discretion when awarding costs.

[14]         In Armoyan v. Armoyan, 2013 NSCA 136, our Court of Appeal provided helpful guidance on the principles that should be considered when determining costs.  Fichaud, J. stated:

1.      The court’s overall mandate is to do “justice between the parties”: para. 10.

2.      Unless otherwise ordered, costs are quantified according to the tariffs; however, the court has discretion to raise or lower the tariff costs applying factors such as those listed in Rule 77.07(2).  These factors include an unaccepted written settlement offer, whether the offer was made formally under Rule 10, and the parties’ conduct that affected the speed or expense of the proceeding: paras. 12-13.

3.      The Rule permits the court to award lump sum costs and depart from tariff costs in specified circumstances.  Tariffs are the norm and there must be a reason to consider a lump sum: paras. 14-15.

4.      The basic principle is that a costs award should afford a substantial contribution to, but not amount to a complete indemnity to the party’s reasonable fees and expenses: para. 16.

5.      The tariffs deliver the benefit of predictability by limiting the use of subjective discretion: para. 17.

6.      Some cases bear no resemblance to the tariffs’ assumptions.  For example, a proceeding begun nominally as a chambers motion, signaling Tariff C, may assume trial functions: a case may have “no amount involved” with other important issues at stake, the case may assume a complexity with a corresponding workload, that is far disproportionate to the court time b y which costs are assessed under the tariffs, etc.: paras. 17 and 18.

7.     When the subjectivity of applying the tariffs exceeds a critical level, the tariffs may be more distracting than useful.  In such cases, it is more realistic to circumvent the tariffs, and channel that discretion directly to the principled calculation of a lump sum which should turn on the objective criteria that are accepted by the Rules or case lay: para. 18.

[15]         The mother is represented by Nova Scotia Legal Aid (NSLA).  The fact a successful party is represented by a NSLA lawyer does not prevent a costs award from being made.  This has been noted in MacNeil v. Christie, 2017 NSSC 247 (MacLeod-Archer, J.) and, Nova Scotia Community Services v. K.M. and S.H, 2021 NSSC 10, (Forgeron, J.).  I adopt the reasons of Justice MacLeod-Archer in Chisholm v. Chisholm, 2016 NSSC 325, wherein she notes that the provision of service by Nova Scotia Legal Aid comes at a cost to the public.

Decision

[16]         I award costs of $2500.00 inclusive of the disbursements to the Nova Scotia Legal Aid Commission (NSLA) on behalf of the mother.  I grant these costs because:

1.     The mother was entirely successful in her application.  The father was not.

2.     The father’s allegation that the child was sexually abused by V.D. and as a result, was not safe in the mother’s primary care was a key and central theme in the presentation of his case.  Flowing from that allegation, considerable Court time was devoted to the calling of V.D. as a witness, given he was under the age of majority.  Pre-trials, engagement of legal aid counsel for the child witness and a decision on this issue resulted.  Supplemental submissions were sought by me on the issue.  The mother filed one.  The father did not.  The father was not successful in proving this allegation which clearly complicated the hearing.

3.     The mother was represented by NSLA.  No breakdown of legal fees or disbursements was provided.  The opportunity for additional submissions was not taken advantage of by either party.

[17]         Given the comments of Fichaud, J.A. in Armoyan v. Armoyan (supra), I choose not to follow “the rule of thumb” approach in this particular case.

[18]         There was no monetary issue raised in this proceeding.  As was noted by Jesudason, J. in Pernell v. Larkin, 2022 NSSC 303 at page 10, paragraph 23, point 3:

While I agree that applying the tariffs is the norm, and should generally be applied when awarding costs, I conclude that a lump sum award is more appropriate here because the parenting issues cannot be readily assigned a dollar value. I also reject the “rule of thumb” approach be applied in this case for similar reasons as stated by Justice Forgeron in paras. 18-20 in KG. v. HG,, 2021 NSSC 142. Specifically, I agree with her that such a rule of thumb approach does not represent “an appropriate yardstick”, is “dated” and was not employed by the Court of Appeal when calculating costs in Armoyan.  

[19]         Ms. Fougere shall draft the order.

MacDowell, J