J.W.L. v. C.B.M., 2008 NSSC 387

• Judge: MacDonald, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 18, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 387;(2008), 272 N.S.R.(2d) 274 (SC)

J.W.L. v. C.B.M. (2008), 272 N.S.R.(2d) 274 (SC);

    869 A.P.R. 274

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. DE.055

J.W.L. (petitioner) v. C.B.M. (respondent)

(1201-060431; SFHD-044383; 2008 NSSC 387)

Indexed As: J.W.L. v. C.B.M.

Nova Scotia Supreme Court

Family Division

MacDonald, J.

December 18, 2008.

Summary:

The parties divorced in 2008. The wife sought an equal division of all assets, and spousal support. The husband (the plaintiff in the proceeding) sought to have several of the assets classified as "business assets".

The Nova Scotia Supreme Court, Family Division, in a decision reported at 267 N.S.R.(2d) 86; 853 A.P.R. 86, awarded the wife a total asset value of $960,703 and spousal support of $800 per month subject to potential variation. Without considering the impact of offers for settlement exchanged between the parties in 2007, the court decided that neither party had achieved relative success so as to justify a cost award. Subsequently, the court was asked to consider whether costs should be awarded after consideration of the offers for settlement.

The Nova Scotia Supreme Court, Family Division, in a decision reported at 269 N.S.R.(2d) 54; 860 A.P.R. 54, determined that the husband was entitled to a costs award, based on an analysis of the settlement offers against the result at trial. The quantum of costs remained to be determined.

The Nova Scotia Supreme Court, Family Division, awarded the husband costs in the amount of $20,000.

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 4189

Divorce - Practice - Costs - Settlement offers - The Nova Scotia Supreme Court, Family Division, determined that the husband was entitled to a costs award, based on an analysis of the settlement offers against the result at trial - The husband, the plaintiff in the proceeding, had made a formal "offer to settle" and sought to invoke Civil Procedure Rule 41A (where an offer to settle was made by a plaintiff and where, inter alia, that plaintiff obtained a judgment as favourable or more favourable than the terms of the offer to settle, that plaintiff was entitled to party and party costs plus taxed disbursements to the date of the service of the offer and thereafter to taxed disbursements and double the party and party costs) - If that rule could not practicably be applied, the husband requested that the offer be taken into account to provide him a substantial cost award - Each party had assets or money of a value determined at trial - There was no clearly identifiable dollar amount awarded - The husband suggested that the court use the value of the assets placed at risk to determine the "amount involved" - The court declined to set a dollar amount - The provisions of rule 41A.09 could not assist the husband, where its application relied on a mathematical calculation based on an application of the tariffs contained in rule 63 - The application of the tariffs required a dollar amount to be determined - To set a dollar amount in the circumstances would be an artificial exercise - However, rule 41A.11 did permit consideration of formal offers in the context of the general exercise of the court's discretion - See paragraphs 15 to 17.

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - The Nova Scotia Supreme Court, Family Division, determined that the husband was entitled to a costs award, based on an analysis of the settlement offers against the result at trial - The wife remained the owner of a home valued at $500,000, which was to be purchased by her son, a cottage valued at $127,689, a RRIF valued at $163,974 and a cash payment from the husband of $208,694 - Her income with spousal support was estimated to be $37,400 - The husband's net income after payment of spousal support was not significantly greater than her net income - The wife argued that an award of costs against her would have "devastating financial consequences for her" - She pleaded impecuniosity and the disparity of incomes between the parties - Further, she requested that the court take judicial notice that her investments had declined dramatically due to the pending world recession - The court awarded the husband costs of $20,000 - Even if the court used judicial notice in such circumstances, the husband likely also had suffered a corresponding decrease in his net worth - The wife was not impecunious nor was there a significant disparity of incomes between the parties - See paragraphs 21 to 22.

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - A husband, the plaintiff in the proceeding, made a formal "offer to settle" and requested, inter alia, that the existence of the offer be taken into account to provide him a substantial cost award - The Nova Scotia Supreme Court, Family Division, determined that its consideration of the husband's offer pursuant to Civil Procedure Rules 63.02 and 67 was "unfettered by the requirement to determine whether the offer was as favourable or more favourable than the award at trial although this may be a valid consideration in the overall exercise of my discretion" (rule 41A.11 permitted it to consider formal offers to settle in the context of the general exercise of its discretion) - The court awarded costs of $20,000 - The court considered, inter alia, the reasonableness of the offer made by the husband and that it remained open to the date of the hearing - The wife did not accept the offer, putting the husband and herself to the expense of trial - At the time of the offer, the husband's legal fees and disbursements were approximately $20,000 - The husband also contributed to increasing the cost of the trial - Had he admitted the valuations provided by the wife's expert much trial time would have been saved - This was a factor the court also considered in making the cost award - See paragraph 20.

Practice - Topic 6931

Costs - General principles - Discretion of court - [See all Family Law - Topic 4189 ].

Practice - Topic 7003

Costs - Party and party costs - General principles and definitions - Amount involved - The Nova Scotia Supreme Court, Family Division, determined that the husband was entitled to a costs award, based on an analysis of the settlement offers against the result at trial - The husband had made a formal "offer to settle" and sought to invoke Civil Procedure Rule 41A.09 - Although the rule could not practicably be applied in the circumstances, it permitted the court to consider the offer in the general exercise of its discretion - The jurisprudence suggested that, when determination of the "amount involved" proved difficult or impossible, the court should use a "rule of thumb" by equating each day of trial to an amount of, most recently, $20,000 - The court, however, was not satisfied that using the "rule of thumb" would provide a sufficient award, after examining the husband's reasonable expenses and considering the impact of the offer to settle - The hearing had lasted four days - The amount involved, using the rule of thumb, would be $80,000 and the basic Tariff would provide $6,875 - Scale 4 would provide party and party costs of $7,650 - The husband's legal fees were well in excess of that amount - See paragraph 18.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See third Family Law - Topic 4189 ].

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - The Nova Scotia Supreme Court, Family Division, determined that the husband was entitled to a costs award, based on an analysis of the settlement offers against the result at trial - The wife argued the husband's offer to settle was not "as favourable or more favourable than" the judgment at trial - In that judgment she received $10,695 more than the husband offered as a property division, and $300 more than he offered as spousal support - Also in his offer, she was to pay the husband party and party costs - The offer for spousal support was "for life" adjusted annually for inflation - The court made the following comments - The decision left open the possibility that the support awarded might be reduced, or terminated - The wife's entitlement was non-compensatory and at some point her own resources might be considered sufficient for her personal support - The offer could be considered as more favourable than the award because it removed the potential for variation or termination - Given the value of the total assets divided, a difference of $10,695 might not be enough to suggest the judgment was "not as favourable" - The wife argued the amount was significant, and if Civil Procedure Rule 41A.09 had been available to the husband, the court would have been forced to determine the issue - See paragraph 19.

Practice - Topic 7248

Costs - Party and party costs - Offers to settle - Costs to successful plaintiff - [See all Family Law - Topic 4189 ].

Cases Noticed:

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 2].

Campbell v. Jones et al. (2001), 197 N.S.R.(2d) 212; 616 A.P.R. 212; 2001 NSSC 139, refd to. [para. 2].

Grant v. Grant (2002), 200 N.S.R.(2d) 173; 627 A.P.R. 173 (Fam. Div.), refd to. [para. 2].

Bennett v. Bennett (1981), 45 N.S.R.(2d) 683; 86 A.P.R. 683 (T.D.), refd to. [para. 2].

Kaye v. Campbell (1984), 65 N.S.R.(2d) 173; 147 A.P.R. 173 (C.A.), refd to. [para. 2].

Campbell-MacIsaac et al. v. Deveaux et al. (2005), 230 N.S.R.(2d) 304; 729 A.P.R. 304; 2005 NSSC 15, refd to. [para. 3].

Urquhart v. Urquhart (1998), 169 N.S.R.(2d) 134; 508 A.P.R. 134 (S.C.), refd to. [para. 18].

Jachimowicz v. Jachimowicz (2007), 258 N.S.R.(2d) 304; 824 A.P.R. 304; 2007 NSSC 303 (Fam. Div.), refd to. [para. 18].

Kennedy-Dowell v. Dowell (2002), 209 N.S.R.(2d) 392; 656 A.P.R. 392; 2002 CarswellNS 487 (Fam. Div.), refd to. [para. 20].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 41A.02 [para. 11]; rule 41A.09 [para. 12]; rule 63 [para. 6]; rule 63.02 [para. 4].

Counsel:

M. Jean Beeler, for the petitioner;

B. Lynn Reierson, for the respondent.

This application was heard in Halifax, N.S., on March 25 to 27, 2008, before MacDonald, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following written decision on quantum of costs on December 18, 2008.