Haas v. Payne Estate, (2016) 372 N.S.R.(2d) 205 (SC)

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 07, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 372 N.S.R.(2d) 205 (SC);2016 NSSC 119;2016 NSSC 92

Haas v. Payne Estate (2016), 372 N.S.R.(2d) 205 (SC);

    1172 A.P.R. 205

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AP.011

Martina Haas (applicant) v. The Estate of Alton Lee Payne (respondent)

(Hfx. No. 439154; Probate No. H61003; 2016 NSSC 92; 2016 NSSC 119)

Indexed As: Haas v. Payne Estate

Nova Scotia Supreme Court

Moir, J.

April 7, 2016 and May 4, 2016.

Summary:

A separation agreement provided for Payne to pay spousal support to Haas. Payne died. Hass filed a claim in Probate Court as a creditor of Payne. She said the estate was obliged to continue making the support payments.

The Nova Scotia Probate Court, in a decision reported at (2015), 368 N.S.R.(2d) 262; 1160 A.P.R. 262, concluded that spousal support was to be paid after Payne's death until 2018. The estate's claim for overpayment of contracted spousal support was dismissed. It's claim to set-off $150,000 in life insurance benefits paid to Haas on account of Payne's death was also refused. The court granted an order that allowed Haas' claim in the amount of periodic payments now due plus interest. The order could declare that $4,395 came due on the seventh day of each subsequent month until and including July 7, 2018. The order could also declare that the future amounts could be capitalized, reduced, or extinguished by agreement or, if the estate established a contractual entitlement to seek variation by a judge, by order. The parties agreed that Haas should recover against the estate costs based on scale two of tariff A, plus prejudgment interest of $2,197.20. They disagreed about the "amount involved" for the calculation of costs.

The Nova Scotia Supreme Court fixed the "amount involved" at $196,000 ($46,000 for arrears and $150,000 for the value of other claims). The result was tariff costs of $18,750. The correct figure for arrears was actually $65,925. The court issued a supplementary decision on costs. Applying the correct amount for the arrears claim increased the amount involved and resulted in tariff costs of $20,850. The court granted an order that gave effect to that change.

Practice - Topic 6963

Costs - Definitions - Amount involved - [See Practice - Topic 7003 ].

Practice - Topic 7003

Costs - Party and party costs - General principles and definitions - Amount involved - A separation agreement provided for Payne to pay spousal support to Haas - Payne died - Hass filed a claim in Probate Court as a creditor of Payne - She said the estate was obliged to continue making the support payments - The court concluded that spousal support was to be paid after Payne's death until 2018 - The estate's claim for overpayment of contracted spousal support was dismissed - It's claim to set-off $150,000 in life insurance benefits paid to Haas was also refused - The court granted an order that allowed Haas' claim in the amount of periodic payments now due plus interest - The order could declare that $4,395 came due on the seventh day of each subsequent month until and including July 7, 2018 - The order could also declare that the future amounts could be capitalized, reduced, or extinguished by agreement or, if the estate established a contractual entitlement to seek variation by a judge, by order - The parties agreed that Haas should recover costs based on scale two of tariff A - They disagreed about the "amount involved" - The estate referred to decisions which said that there was a "rule of thumb" for determining "amount involved" in cases of child and spousal support, which was to add $20,000 for each day of the trial or hearing - The estate submitted that the court should use the arrears plus $20,000 - The Nova Scotia Supreme Court stated that "In a case of contract, like the present, it is wrong to follow a rule of thumb to determine the amount involved. This is for three reasons. First, we are bound by the Court of Appeal decision in Veinot. Second, rules of thumb cause atrophy in discretions. It is in the nature of a discretion that it is not fettered by rule. Third, tariff A includes 'length of trial' as part of the costs calculation. To use it again in 'amount involved' is to rewrite the tariff, which is subordinate legislation under the Costs and Fees Act" - The court fixed the "amount involved" at $196,000 ($46,000 for arrears and $150,000 for the value of other claims) - The result was tariff costs of $18,750 - The correct figure for arrears was actually $65,925. The court issued a supplementary decision on costs - Applying the correct amount for the arrears claim increased the amount involved and resulted in tariff costs of $20,850.

Cases Noticed:

Hamilton v. Hamilton (2010), 295 N.S.R.(2d) 396; 935 A.P.R. 396; 2010 NSSC 381, refd to. [para. 7].

Fermin v. Yang, [2009] N.S.R.(2d) Uned. 130; 2009 NSSC 222 (Fam. Div.), refd to. [para. 7].

Veinot v. Veinot Estate et al. (1998), 167 N.S.R.(2d) 101; 502 A.P.R. 101 (S.C.), refd to. [para. 9].

Veinot v. Veinot Estate et al. (1998), 172 N.S.R.(2d) 111; 524 A.P.R. 111 (C.A.), folld. [para. 10].

Ocean v. Economical Mutual Insurance Co. et al. (2013), 329 N.S.R.(2d) 131; 1042 A.P.R. 131; 2013 NSSC 120, refd to. [para. 10].

David et al. v. Halifax (Regional Municipality) et al. (2003), 218 N.S.R.(2d) 188; 687 A.P.R. 188; 2003 NSSC 201, refd to. [para. 10].

Joudrey v. Joudrey (2003), 212 N.S.R.(2d) 9; 665 A.P.R. 9; 2003 NSSC 30, refd to. [para. 11].

Counsel:

Sheree L. Conlon and Michael MacIsaac, for the applicant;

Peter L. Coulthard, Q.C., and Julia E. Cornish, Q.C., for the respondent.

This matter was heard by Moir, J., of the Nova Scotia Supreme Court based on final written submissions submitted on April 1 and 29, 2016. Moir, J., delivered the following decision on April 7, 2016, and a supplementary decision on May 4, 2016 (see paragraphs 15 to 17).