J.P., Re, 2007 NSCA 87

• Judge: MacDonald, C.J.N.S., Roscoe and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 24, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSCA 87;(2007), 257 N.S.R.(2d) 163 (CA)

J.P., Re (2007), 257 N.S.R.(2d) 163 (CA);

    820 A.P.R. 163

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. AU.001

L.K.S. (appellant) v. D.M.C.T. (respondent)

(CA 275471; 2007 NSCA 87)

Indexed As: J.P., Re

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Roscoe and Saunders, JJ.A.

August 1, 2007.

Summary:

The applicant mother applied for $66,000 suit costs in an application respecting child maintenance and custody matters.

The Nova Scotia Family Court, in a decision reported at 248 N.S.R.(2d) 363; 789 A.P.R. 363, ordered the payment of $6,000 in suit money, payable forthwith. The father appealed, challenging the court's jurisdiction to award suit costs and the amount of the award. The mother cross-appealed, claiming that the amount was inadequate. The mother brought a second application for suit money. She sought $18,000 in suit costs to retain a chartered accountant to do a thorough, even exhaustive, valuation of the financial affairs of the father and his solely owned company, including detailed interviews with any staff or accountants.

The Nova Scotia Family Court, in a decision reported at 253 N.S.R.(2d) 40; 807 A.P.R. 40, awarded the applicant a further $8,000 in suit fees and provided supplementary reasons respecting its jurisdiction to provide suit costs in an application under the Maintenance and Custody Act.

The Nova Scotia Court of Appeal dismissed the appeal and cross-appeal from the award of suit costs in the amount of $6,000 (248 N.S.R.(2d) 363; 789 A.P.R. 363). The court affirmed the Family's Court's supplementary reasons respecting its jurisdiction to award suit costs (253 N.S.R.(2d) 40; 807 A.P.R. 40).

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2189

Custody and access - Practice - Costs (incl. suit money or interim costs) - The applicant mother sought suit costs in an application respecting child maintenance and custody matters - Section 22 of the Maintenance and Custody Act (MCA) provided that "Where any matter of practice or procedure is not provided by the rules of the Family Court or the Summary Proceedings Act, the rules of the Supreme Court relating to matrimonial causes shall apply with any necessary modification." - A Family Court judge stated that since suit money was not in fact otherwise provided for, Civil Procedure Rule 57, entitled "Matrimonial Causes", applied - Rules 57.28 and 57.29 provided for an award of suit costs to be made in appropriate circumstances - The judge held that this clearly and unambiguously established the Family Court's jurisdiction to award suit costs - The Nova Scotia Court of Appeal affirmed the decision - Section 22 of the MCA applied so that, as a matter of practice, the Family Court could award suit costs in appropriate MCA applications - See paragraphs 1 to 30.

Family Law - Topic 2189

Custody and access - Practice - Costs (incl. suit money or interim costs) - The applicant mother applied for suit costs to assist her to litigate her application - The application sought a variation in child maintenance and also dealt with custody matters - A Family Court judge ordered the payment of $6,000 in suit money, payable forthwith - While the applicant's counsel projected all manner of things that might happen in the course of the litigation and sought suit costs of tens of thousands of dollars to cover these various possibilities, usually more than one approach could be made to the court if and when new expenses were incurred - Civil Procedure Rules 57 and 70 both referred to applications of this nature being made "from time to time" - It was imprudent, unfair and unnecessary to presuppose the worst and to order a transfer of funds to cover every possible scenario - The court also held that suit costs could include legal fees and not just disbursements - The Nova Scotia Court of Appeal refused to disturb the amount awarded - See paragraphs 31 to 36.

Family Law - Topic 2416

Maintenance of wives and children - Practice - Costs (incl. suit money or interim costs) - [See both Family Law - Topic 2189 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 12].

Hill v. Hill (2003), 213 N.S.R.(2d) 185; 667 A.P.R. 185; 2003 NSCA 33, refd to. [para. 12].

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, refd to. [para. 12].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al. (2005), 232 N.S.R.(2d) 161; 737 A.P.R. 161; 2005 NSCA 70, refd to. [para. 27].

Christianson, Re, [1951] 3 W.W.R. 133 (B.C.S.C.), refd to. [para. 28].

Little Sisters Book and Art Emporium v. Minister of National Revenue (2007), 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 31].

Statutes Noticed:

Maintenance and Custody Act, R.S.N.S. 1989, c. 160, sect. 22 [para. 22].

Authors and Works Noticed:

Orkin, Mark M., Costs in Family Matter - Selected Issues (2002-2003), 20 C.F.L.Q. 1, pp. 389, 390 [para. 14]; 391 [para. 32].

Counsel:

William L. Ryan, Q.C. and Sara Scott, for the appellant;

Blaine G. Schumacher, for the respondent.

This appeal was heard on May 24, 2007, by MacDonald, C.J.N.S., Roscoe and Saunders, JJ.A., of the Nova Scotia Court of Appeal. MacDonald, C.J.N.S., delivered the following reasons for judgment for the court on August 1, 2007.