N.D.L. v. M.S.L.,

• Jurisdiction: Nova Scotia
• Judge: MacDonald, J.
• Neutral Citation: 2010 NSSC 159
• Citation: 2010 NSSC 159,(2010), 289 N.S.R.(2d) 303 (SC),38 DLR (3d) 700,5 NSR (2d) 350,(2010), 289 NSR(2d) 303 (SC),289 N.S.R.(2d) 303,289 NSR(2d) 303,38 D.L.R. (3d) 700
• Date: 20 April 2010
• Court: Supreme Court of Nova Scotia (Canada)

N.D.L. v. M.S.L. (2010), 289 N.S.R.(2d) 303 (SC);

    916 A.P.R. 303

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. AP.053

L.(N.D.) (petitioner) v. L.(M.S.) (respondent)

(1201-063512; SFHD-063948; 2010 NSSC 159)

Indexed As: N.D.L. v. M.S.L.

Nova Scotia Supreme Court

Family Division

MacDonald, J.

April 20, 2010.

Summary:

Spouses separated in April 2009 after seven years' marriage. They had a six year old daughter. The mother wished to move back with her daughter to her parents' home in Bolivar, Missouri. She had a strained relationship with the father's family and there was a history of domestic violence by the father. The father opposed removing the daughter from the jurisdiction.

The Nova Scotia Supreme Court, Family Division, in a judgment reported 289 N.S.R.(2d) 8; 916 A.P.R. 8, held that it was in the best interests of the daughter to award custody to the mother and permit the mother and daughter to move to Missouri. The court fixed access and ordered the father to pay $263 per month child support. The mother sought costs.

The Nova Scotia Supreme Court, Family Division, awarded the successful mother $6,703 in costs, including $3,477.39 in disbursements.

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 - The mother of a six year old daughter successfully applied for custody and was permitted to move to Missouri with the daughter - The mother sought $11,477.39 in costs (including $3,477.39 in disbursements) - The father made no submissions - No offers were exchanged and the husband had a limited financial ability to pay costs - The Nova Scotia Supreme Court, Family Division, held that "I have taken into consideration the fact that mobility cases are extremely difficult to settle because one of the parents will lose significant parenting time and his or her relationship with the child may be fundamentally altered. Therefore, proceeding to trial cannot be viewed as 'unreasonable'. Nevertheless, the wife was the successful party and there is no principled reason why she should be denied costs. I accept that all of the disbursement costs were reasonably incurred and should be reimbursed. Using the 'rule of thumb' by equating each day of trial to an amount of $20,000 the 'amount involved' would be $60,000 and the basic tariff would be $5,375.00. The Scale 1 tariff is $3,225.00 and although the wife's legal costs considerably exceed this amount, after taking all factors into consideration, this is an appropriate award. The wife shall have a total cost award of $6,703.00." - See paragraph 4.

Practice - Topic 6963

Costs - Definitions - Amount involved - [See Family Law - Topic 2189 ].

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].

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

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

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

M.Q.C. v. P.L.T. (2005), 251 N.S.R.(2d) 8; 802 A.P.R. 8; 2005 NSFC 27, refd to. [para. 3].

Counsel:

William Leahey, for the applicant;

Ritchie Wheeler, for the respondent.

This application was heard on January 21, 22 and 28, 2010, at Halifax, N.S., before MacDonald, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on April 20, 2010.