Ruling sets aside some trial costs awarded against ex-husband, grants him appeal costs
Following divorce proceedings, the Nova Scotia Court of Appeal set aside trial costs of $9,250 and awarded the ex-husband appeal costs of $1,000, given that the judge’s finding that the ex-wife achieved more success contradicted his merits decision.
In MacCoul v. MacCoul, 2026 NSCA 1, the parties married in December 1993, had one child, and separated in June 2022.
After the parties’ divorce trial, Justice Robert Gregan of the Nova Scotia Supreme Court’s Family Division ordered the appellant ex-husband to pay $19,250 in costs to the respondent ex-wife, $10,000 of which sanctioned him for his conduct during the trial process. The judge considered the ex-wife the more successful party.
The ex-husband appealed the costs award. He alleged that the judge unjustly sanctioned him for a concession he made. Specifically, he abandoned his claim of enforceability for a cohabitation agreement, which would limit his ex-wife’s entitlement to spousal support and her share in the division of assets accumulated during their marriage.
The ex-husband argued that the costs award was unjust and marred by multiple errors justifying the court’s intervention. He claimed that he was the more successful party in the trial, which had mixed results.
Costs partly set aside
The Nova Scotia Court of Appeal granted the ex-husband leave to appeal, given the arguable issue he had raised, and partly allowed his appeal because of the judge’s material errors affecting a portion of his costs assessment.
While the appeal court refused to disturb the judge’s discretionary decision to award $10,000 in trial costs to sanction the ex-husband for his conduct, it set aside the award of $9,250 in costs.
The appeal court ordered each party to bear the balance of their respective trial costs, given their divided success at trial. The appeal court awarded the ex-husband $1,000 in partial appeal costs – of the $2,000 he sought – to reflect the mixed success.
Regarding the $3,500 cost award associated with the finding that the ex-husband had breached an interim agreement for exclusive possession of an apartment and spousal support, the appeal court ruled that the judge had enough evidentiary basis supporting his determination.
The appeal court added that the judge did not improperly exercise his discretion or impose a patently unjust quantum in connection with the $3,500 cost award.
Regarding the $9,250 cost award, the appeal court held that the judge premised his finding that the ex-wife was the more successful party on a legal error.
The appeal court explained that the judge issued a costs endorsement contradicting his merits decision and his statement that the trial results were mixed. The appeal court saw problems in the judge’s conclusion that the ex-wife was more successful and his assessment of the amount involved.
