Provost v. Marsden, (2010) 296 N.S.R.(2d) 176 (SC)

• Judge: O'Neil, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 12, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 296 N.S.R.(2d) 176 (SC);2010 NSSC 423

Provost v. Marsden (2010), 296 N.S.R.(2d) 176 (SC);

    940 A.P.R. 176

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. NO.034

M. Murielle Provost (applicant) v. Steven Marsden (respondent)

(1201-057557; 2010 NSSC 423)

Indexed As: Provost v. Marsden

Nova Scotia Supreme Court

O'Neil, J.

November 12, 2010.

Summary:

The parties divorced in 2004. The corollary relief judgment set out the husband's child support obligation for the parties' three children. His 2005 earnings were to be used to establish his child support obligation for the year beginning June 1, 2006 and ending May 31, 2007. In 2005, the husband earned extraordinary income that resulted in a total income of $595,087 (about five times his usual income). The parties returned to court in 2006 because of a dispute over the quantum of child support.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, ruled that the 2005 spike in income gave rise to an additional child support obligation of $82,854 in 2006. The court rejected the husband's request to have the increase set aside for the university education of the children, and left the responsibility of the "windfall" with the mother. The court awarded the wife costs of $2,000. The wife sought a ruling on the husband's obligation to pay ongoing child support and to contribute to the educational expenses for the eldest child. The father argued that the "windfall" should be accessed to fund the educational expenses.

The Nova Scotia Supreme Court, in a decision reported at (2009), 286 N.S.R.(2d) 138; 909 A.P.R. 138; 2009 NSSC 365, deemed $45,000 of the windfall to be held in trust by the wife for the educational or other special needs of the children. Counsel subsequently asked the court to assist in implementing the court's decision: see [2010] N.S.R.(2d) Uned. 97; 2010 NSSC 162. Following the decisions, submissions were made on the issue of costs.

The Nova Scotia Supreme Court awarded the husband costs totalling $3,000.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - The Nova Scotia Supreme Court stated that "[a]rriving at a costs assessment in matrimonial matters is difficult given the often mixed outcome and the need to consider the impact on an onerous costs award on the families; and the children in particular. The need for the court to exercise its discretion and to move away from a strict application of the tariffs is often present" - See paragraph 13.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - The dispute concerned the accounting for a child support "windfall" that arose from a period of the husband earning extraordinary income - The most significant point of disagreement was the attribution of the windfall to post secondary expenses of the children - The husband's offer to settle was more generous than the trial outcome - The results were mixed, but the husband was more successful overall - The Nova Scotia Supreme Court awarded the husband costs totalling $3,000 - The court applied the 1972 Rules, the proceeding having started before June 30, 2010 - The proceeding most appropriately fell within Tariff A, there being a decision following a half day hearing - The amount involved was within the $40,001-$65,000 range - Notwithstanding a previous direction on the use of the windfall, the hearing was necessary to once again address the issue - The wife made a determined effort to deflect responsibility from the children when their contribution to university education costs was a core factor - The wife's position on the distribution of the "windfall" was unreasonable - The court was not influenced by the exchange of offers to settle as, given their differing structures, it was difficult to arrive at a conclusion about the value of each to the other - See paragraphs 26 to 33.

Family Law - Topic 2416

Maintenance of wives and children - Practice - Costs (incl. suit money or interim costs) - [See second Family Law - Topic 966 ].

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - [See both Family Law - Topic 966 ].

Family Law - Topic 4182

Divorce - Practice - Costs - Lump sum or fixed costs - [See second Family Law - Topic 966 ].

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - [See second Family Law - Topic 966 ].

Cases Noticed:

Tamlyn v. Wilcox (2010), 295 N.S.R.(2d) 186; 935 A.P.R. 186; 2010 NSSC 363 (Fam. Div.), refd to. [para. 6].

N.D.L. v. M.S.L. (2010), 289 N.S.R.(2d) 303; 916 A.P.R. 303; 2010 NSSC 159 (Fam. Div.), appld. [para. 12].

Shurson v. Shurson, [2007] N.S.R.(2d) Uned. 42; 2007 NSSC 101 (Fam. Div.), consd. [para. 14].

Conrad v. Bremner (2006), 242 N.S.R.(2d) 330; 770 A.P.R. 330; 2006 NSSC 99 (Fam. Div.), consd. [para.14].

Gardiner v. Gardiner (2007), 259 N.S.R.(2d) 240; 828 A.P.R. 240; 2007 NSSC 282, consd. [para. 14].

Grant v. Grant (2002), 200 N.S.R.(2d) 173; 627 A.P.R. 173 (Fam. Div.), consd. [para. 14].

Pelrine v. Pelrine (2007), 255 N.S.R.(2d) 53; 814 A.P.R. 53; 2007 NSSC 123 (Fam. Div.), consd. [para. 21].

Kennedy-Dowell v. Dowell (2002), 209 N.S.R.(2d) 392; 656 A.P.R. 392 (Fam. Div.), refd to. [para. 21].

MacLean v. MacLean (2001), 200 N.S.R.(2d) 34; 627 A.P.R. 34 (S.C.), refd to. [para. 21].

Hanakowski v. Hanakowski, [2002] N.S.J. No. 272 (Fam. Ct.), refd to. [para. 23].

Guillena v. Guillena (2003), 212 N.S.R.(2d) 101; 665 A.P.R. 101 (Fam. Div.), consd. [para. 24].

Ghosn v. Ghosn (2006), 246 N.S.R.(2d) 38; 780 A.P.R. 38 (S.C.), consd. [para. 25].

Counsel:

Diana M. Musgrave, for the applicant;

Kim A. Johnson, for the respondent.

Submissions on costs were heard in May 2010, in Halifax, Nova Scotia, before O'Neil, J., of the Nova Scotia Supreme Court, who delivered the following decision on November 12, 2010.