Court File and Parties

Court File No.: 52/13 Date: January 2, 2014

Ontario Court of Justice

Re: Kristianna Forster - Applicant And: Jason Fitz-Patrick Trim - Respondent

Before: Justice Roselyn Zisman

Counsel:

• Lailla V. Pavicevic for the Applicant
• Dawn M. Bennett for the Respondent
• J.S. Winny counsel for Dawn Bennett

Heard On: November 1, 13 and November 19, 2013 and by written cost submissions

Introduction

1On November 1, 2013 I heard two motions in this matter. A motion by the Respondent, Jason Fitz-Patrick Trim ("father") to find the Applicant, Kristianna Forster ("mother") in contempt of the order of July 18, 2013 in that she was refusing to share the transportation for access visits and a motion by the mother to strike paragraph 12 of the order of July 18, 2013 on the basis that it had been included in the order by error.

2In an oral decision, I dismissed the father's contempt motion on the basis that the mother had not wilfully disobeyed a court order. I granted the mother's motion to strike paragraph 12 of the order of July 18, 2013 pursuant to Family Law Rules 25 (19) (b) as I found that the paragraph had been included in the order by mistake. The Applicant's counsel as the successful party on both motions sought costs of $3,000. The Respondent's counsel requested a bill of costs and I then ordered the mother's counsel prepare a formal bill of costs and that both counsel prepare written submissions as to costs.

3On November 1st, mother's counsel also advised the court that the mother wished to travel with the child to Florida for American Thanksgiving and she wished to secure a motion date in the event the father was not prepared to consent. The following endorsement was made: "If Thanksgiving is not agreed upon, motion to be argued on November 13th at 9:00 a.m."

4On November 13th, mother's counsel attended court and asked the court hear a motion to permit the mother to travel to Florida for American Thanksgiving. I was advised that Ms Bennett, father's counsel, was not consenting to the motion and would not be attending court. Ms Pavicevic, mother's counsel, advised the court that on November 11th she had sent a draft order to mother's counsel with a covering letter stating that if the consent was not signed she would be proceeding with the motion on November 13th. Mother's counsel advised that she expected the consent would be signed but when it was not returned she then emailed a Notice of Motion and supporting affidavit to father's counsel's office on the evening of November 12th and had expected counsel would be attending court. The order requested was made and Ms Bennett was advised that the court, on its own initiative, was adjourning the matter to November 19th to give Ms Bennett an opportunity to be heard as to why costs against her personally should not be ordered.

5On November 19th, Ms Bennett and her counsel attended and made submissions as to why costs should not be ordered against counsel personally. Mother's counsel did not attend as she had been in a motor vehicle accident but sent a letter to father's counsel that she took no position. After hearing submissions, I reserved my decision.

6With respect to the issue of costs for the motions heard on November 1st, I have now reviewed both counsels' costs submissions and the mother counsel's bill of costs.

Position of the Parties

7The mother seeks full recovery of her costs in the amount of $3,644.25 inclusive of applicable taxes on the basis that the mother was completely successful on both motions argued on November 1st.

8The father's counsel submits that despite being the successful party, the mother should not be entitled to any costs, pursuant to Family Law Rules 24 (4) and (5) on the basis that a successful party can be deprived of costs if that party acted unreasonably. If costs are ordered, then she submits that the costs are excessive and exclusively due to the mother's bargaining stance and her counsel's failure to change the order of July 18th 2013 when she realized an error had been made. She also submits that as the mother is legally aided she should not profit by her counsel's failure to expeditiously take steps to change the order that her counsel knew contained a mistake.

9Mother's counsel submits that costs should not be awarded against her personally for the Thanksgiving motion heard on Nov 13th as she had not been served properly and in any event, costs against a lawyer personally should be awarded in exceptional circumstances.

Background

10In order to fully appreciate the submissions as to costs it is important to briefly review the background.

11The parties were involved in a relationship from 2007 to 2009. They never lived together and have one child, Sateena Braaelyn Trim Forster, born July 7, 2008. It is not disputed that the child has resided in the care of the mother since birth. The father has exercised access but there is a dispute as to the extent and consistency of such access. There is also a dispute as to the ability of the parties to effectively communicate and the nature of the relationship between the parties.

12In January 2012, the mother commenced an application seeking sole custody, child support and ongoing alternate week-end access to the father. Subsequent to commencing this application, the mother had a child with another man, who is now fiancé, and who resides in Florida and she is seeking to be able to move with the child.

13The father's answer and claim requests an order for joint custody, a shared residential schedule and an order preventing the mother from moving permanently out of the jurisdiction.

14In July 2013, the mother planned to take the child with her to Florida for the week of July 22nd. The mother's counsel corresponded with the father's counsel on July 2nd requesting he provide his written consent and asked for such consent no later than July 12th failing which she would have no choice but to bring a motion. The letter also states that the mother agreed to the father's proposal for a sharing of the summer holidays but did not agree that the mother would share the transportation of the child on access visits. The mother deposed that the father had always done all of the driving and it was only since he obtained counsel that this was raised as an issue.

15On July 12th, mother's counsel again corresponded with father's counsel as she had not received a response to her letter. A draft consent and Minutes of Settlement were enclosed. The correspondence states that if a response is not received by July 17th an urgent motion would be brought on July 18th.

16On July 17th, mother's counsel sent another letter that states that it was 7:15 pm and the executed consent had not been received. The letter states that father's counsel had earlier told her that she had "different instructions" and would telephone counsel back, that she never did call and when mother's counsel tried to call her office the call was not answered and no return call was received.

17Father's counsel submits that it was not until July 17th that mother's counsel sent an itinerary but there is no correspondence from her, in response to the initial letter of July 2nd requesting an itinerary. Father's counsel essentially implies that it was mother's counsel's fault that these negotiations took place at the last minute.

18It was the mother's position that the father would not consent to her travel plans unless she agreed to share the driving. When the mother would not agree the father finally relented and signed the travel consent at the last moment.

19Both counsel apparently worked until close to midnight on July 17th on various changes to the consent. A draft order was approved by father's counsel that did not contain a clause about sharing the driving. Due to the multiple drafts that had been exchanged, father's counsel then sent a "clean copy" of the draft order to the mother's counsel as it was agreed that the mother's counsel would attend court on July 18th with respect to the urgent motion she had filed and have the order issued.

20Mother's counsel did not notice that the "clean copy" of the order that the father's counsel had sent to her had included paragraph 12 namely, that the parties would share the driving for the access visits.

21Later that day, father's counsel left a voice mail message for mother's counsel stating that she noticed the mix up in the issued order as it was her understanding that the mother was not agreeing to the sharing of transportation and asking mother's counsel to call her if there was a mistake made. Father's counsel relies on the fact that mother's counsel never called her back and so she assumed that the mother had agreed to share the driving.

22Mother's counsel submitted that she understood the message as an acknowledgement by father's counsel that an error had been made. She assumed that the error would be rectified on the next court attendance without the necessity of bringing a motion which she did not proceed with due to her client's limited financial resources. Access continued during the summer without incident. However, commencing on September 13th there were several incidents where the father refused to return the child unless the mother picked the child up in accordance with the sharing of transportation in paragraph 12 of the order of July 18th and with the mother then refusing to permit the father access unless he agreed to continue to transport the child.

23Mother's counsel wrote to father's counsel on September 24th requesting convenient dates for an emergency motion to set aside paragraph 12 of the July 18th order as both the father and his counsel were aware that it had been included in error. Counsel for the father then threatened to bring a contempt motion if the mother did not comply with the order of July 18th and comply with her responsibility to pick up the child at the end of the father's access visit.

24Father's counsel then commenced a contempt motion dated October 23rd to be heard November 1st and the mother commenced a motion to vacate paragraph 12 of the order of July 18th returnable on the same date. It is the costs pertaining to these two motions that are at issue.

25On the November 1st court attendance, mother's counsel also advised the court that the mother wished to travel to Florida for American Thanksgiving. I suggested to counsel that an order with similar safeguards regarding the mother's travel to Florida in the summer be negotiated by counsel but failing an agreement I set aside November 13th at 9:00 to argue a motion.

26When Ms Bennett did not attend court on November 13th to deal with this issue a telephone call was placed to her office and she advised that she did not have instructions and that she had not been served by mother's counsel. I advised Ms Bennett that I had a fax confirmation sheet indicating her office did received a letter and draft consent from mother's counsel on November 11th and proof that an email with the Notice of Motion and affidavit had been sent to her office late on the evening of November 12th. Ms Bennett then indicated she would try to contact her client and obtain instructions. She was advised to contact mother's counsel on her cellphone. By the afternoon, mother's counsel advised the court she had not heard from Ms Bennett and had left several telephone messages for her.

27The court again placed a telephone call to Ms Bennett's office having been advised that she had been in her office all day. After being placed on hold for over five minutes, Gary Bennett, Ms Bennett's partner, answered the telephone and indicated their firm had no instructions from their client and while constantly interrupting asked the court tell him what Rules of Professional Conduct Ms Bennett was in breach of when told she had an obligation as counsel of record to be present in court. Mr. Bennett was advised to tell his partner that the court would be setting a court date for her to make submissions as to why costs should not be awarded against her personally. The next day, a letter sent by Ms Bennett at 11:06 a.m. on November 13th, was brought to the court's attention. The letter confirmed the telephone discussion with the court at 10:15 am and repeated that Ms Bennett had not received any motion materials and had no instructions from her client and would not be attending court.

28The motion permitting the mother to travel with the child to Florida for American Thanksgiving was granted.

29On November 19th Ms Bennett and counsel retained on her behalf attended court. An affidavit was not filed and only oral submissions were made. It was submitted that the motion was not properly served in accordance with timelines of the Family Law Rules 14(11) as it should have been served on November 6th to give the father the required 4 days' notice. It was then submitted that in any event, the unnecessary costs were the result of Ms Pavicevic's delay and a motion should not have been necessary. It is submitted that Ms Bennett corresponded with Ms Pavicevic on November 4th asking for details about the trip and heard nothing until the November 11th letter and draft consent. I was advised that Ms Bennett emailed the letter and draft consent to her client and had no response. I was further advised that the Notice of Motion returnable November 13th and unsigned affidavit were emailed to her clerk later in the evening of November 12th and she did not receive it until the morning of November 13th.

30It is submitted that Family Law Rules 24 (9) refers to a lawyer being personally liable for costs of any party where the lawyer runs up costs or wastes costs and here as the mother's counsel is retained pursuant to a legal aid certificate it is costs to the system not to the party personally that were incurred. It was also submitted that Ms Bennett was stunned and shocked at being told there was a motion before the court and she made an error in judgement in choosing to remain in her office to deal with her scheduled client appointments instead of coming to court to deal with the motion.

Applicable Legal Principles

31Rule 24(1) of the Family Law Rules provides guidance on costs on a family law context. Rule 24 (1) sets out the basic assumption that a successful party is entitled to costs. This provision still permits a court broad discretion in determining if costs should be paid, by whom and in what amount.

32Rule 24 (11) provides a further list of factors a court should consider in dealing with costs:

A person setting the amount of costs shall consider,

a. the importance, complexity or difficulty of the issues;

b. the reasonableness or unreasonableness of each party's behavior in the case;

c. the lawyer's rates

d. the time properly spent on the case, including conversations between the lawyer and the party, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

e. expenses properly paid or payable; and

f. any other relevant matter.

33In Serra v. Serra, 2009 ONCA 395, [2009] O.J. No. 1905 at para. 8, the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behavior by litigants.

34I also agree with the comments by Justice Perkins in Biant v. Sagoo, [2001] O.J. No. 3693 (S.C.J.) that:

the preferable approach in family law cases is to have cost recovery generally approach full recovery, so long as the successful party has behaved reasonably and the costs claimed are proportional to the issues and the result.

35I am also mindful that the court's role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees. As was pointed out in Boucher v. Public Council (Ontario) (2004), 2004 CarswellOnt 2521, [2004] O.J. No. 2634 (Ont. C.A.), the award of costs must be fixed in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings rather than an exact measure of actual costs to the successful litigant.

36Subsection (b) of Family Law Rule 24(11), states that the reasonableness of each party's behavior in a case is a factor to be considered by the court in assessing the issue of costs.

37Rule 24 (5) provides some guidance as to whether or not a party acted reasonably and states that:

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

38Rule 24 (9)(c) provides that if a party's lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard, order that the lawyer or agent pay costs of any party personally.

Applicable Legal Principles to the Facts

a) Costs Against Lawyer Personally for Motion Heard November 13th

39It is well settled law that costs order against a lawyer are not confined to a situation where the lawyer acted in bad faith. However, the court should exercise extreme caution before ordering costs against a lawyer personally. (See M.D. v. Windsor-Essex Children's Aid Society [2010] O. J. No. 2270 (S.C.J.) at paras. 57-58 for a summary of the case law; also Rand Estate v. Lenton [2009] No.1173 (C.A.) at para. 1). Although a finding of bad faith is not a pre-requisite, the presence or absence of bad faith is a relevant consideration in determining if costs should be awarded.

40I reject the submissions of counsel for Ms Bennett that in view of the procedural irregularities in the motion materials served on her that she was entitled to ignore the documents and not attend court. All of the submissions regarding procedural irregularities, being short served and her inability to obtain instructions from her client should have been made either by her in person or by an agent properly instructed by her. Ms Bennett could have requested an adjournment and/or costs. Ms Bennett and her client were aware of the proposed trip by the mother by correspondence dated October 31st and it was again discussed in court on November 1st.

41It is difficult to accept the submission that Ms Bennett had no instructions from her client regarding the mother's proposed Thanksgiving trip. But if she was waiting for a reply to her letter of November 4th knowing there was a pre-arranged motion date for November 13th she could have followed up with Ms Pavecivic. The mother's affidavit explained that counsel was teaching that week and did not have the time to respond earlier than November 11th. That letter made it clear that if the consent was not signed and returned counsel would attend court on November 13th and would be requesting the court hear the motion. Counsel should not have simply sat back and emailed the letter to her client and not pro-actively obtained his instructions. In this electronic age counsel can contact their clients almost instantaneously through a variety of medium. This was particularly important in this case where two motions had just been argued regarding miscommunication between counsel. It is understandable that mother's counsel was not prepared to wait for the father's consent in view of the previous difficulties the mother had trying to obtain father's consent to travel during the summer.

42I also reject the submission that the draft Notice of Motion and affidavit were emailed to Ms Bennett's clerk and not to her personally and therefore the documents were not brought to her attention until later in the day. Ms Bennett is responsible for how she runs her office. If a Notice of Motion is emailed to her law clerk on the evening of November 12th returnable November 13th one would have expected the law clerk to immediately bring it to the lawyer's attention.

43I also reject the submission that just because the mother's counsel is retained on a legal aid certificate that this impacts on the ability of a court to order costs payable to the mother pursuant to Family Law Rules 24 (9) in appropriate circumstances.

44The issue of lawyers' civility to each other is increasingly becoming a concern to the court. A counsel can properly and vigorously represent a client without being discourteous or engaging in sharp practice. For example, I note that the letter Ms Bennett sent to the court on November 13th states that she do not receive any motion materials. This is playing with semantics as the materials were emailed to her clerk. She also states she did not have instructions and as such she was simply not attending and the court should proceed ex parte.

45The issue of lawyers of record not showing up for scheduled court attendances is also an ongoing concern to the court. Ms Bennett is the solicitor of record and was in court as was her client when a motion date was set for November 13th. She was in my view obligated to come to court and make the appropriate submissions on behalf of her client.

46Rule 4.01 of the Rules of Conduct of the Law Society of Upper Canada states that:

4.01(1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect.

The commentary on this Rule states that:

The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing where justice can be done. Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected

47It is unfortunate that more and more the court sees counsel that do not understand or abide by their responsibilities as officers of the court.

48In this case, I find that Ms Bennett's conduct did increase the costs to the mother. A special attendance was scheduled for 9:00 a.m. before the regular court docket to deal with the mother's motion to travel to Florida for American Thanksgiving, if the issue was not resolved. The matter would have been dealt with in less than a half hour or if the request was only for an adjournment by Ms Bennett because of short service and her lack of instructions then it would have taken less than 5 minutes. Instead, mother's counsel was required to remain in the courthouse all morning and into the afternoon waiting for Ms Bennett to contact her as Ms Bennett had been instructed by the court to obtain instructions from her client and call father's counsel on her cellphone. Ms Bennett never bothered to try to contact Ms Pavicevic and did not return her calls when she tried to call Ms Bennett at her office. I am also mindful that there would have been no basis for the father to oppose the motion and the entire motion and court attendance should not even have been necessary. I find that Ms Bennett's entire attitude and stance in this matter lacked courtesy and respect to the court and to opposing counsel.

49In determining if costs should be ordered against counsel personally, the court must consider all of the circumstances and exercise its discretion with "extreme caution". I have considered that Ms Bennett personally apologized to the court and that there was no bad faith just bad judgement on her part. I have also considered that although Ms Pavicevic is not to blame for Ms Bennett's conduct she should have dealt with this issue on a timelier basis. I have also considered that Ms Pavicevic is not seeking costs and has not submitted a bill of costs for this attendance.

50In all of these circumstances, I have determined that there will be no order for costs regarding the November 13th court attendance.

b) Costs for Contempt Motion and Motion to Strike Paragraph 12 of the Order of July 18, 2013 Due to Mistake Heard on November 1st

51In determining the amount of costs, I have considered the legal principles and the following factors as set out in Rule 24 (11) as follows:

a. The Importance, Complexity or Difficulty of the Issues:

52The contempt motion was of great importance to the mother. The mother was facing a contempt motion which is a quasi-criminal proceeding with the possibility of significant penalties. A finding of contempt would also carry the stigma of a having wilfully disobeyed a court order which could impact on the mother's desire to move out of the jurisdiction. The issue of transportation was also of considerable importance as it increased the conflict between the parties, resulted in a loss of week-end access to the father, of police involvement and required the mother to transport the child along with her new baby to see the father.

b. The Reasonableness or Unreasonableness of Each Party's Behavior in the Case:

53The mother attempted to resolve the misunderstanding about the transportation in the July 18th order but was left with no choice but to proceed to court.

54I reject the submission of father's counsel that the mother acted unreasonably because her counsel did not immediately clarify that there was an error in the order and did not immediately file a motion with the court to rectify the error. Instead the father and his counsel took the position that they could rely on the order and further could request a finding that the mother was in contempt by her non-compliance with the provision that required her to share the transportation.

55As indicated I found that the father and his counsel were aware that as of late in the evening of July 17th the mother was not agreeing to sharing the transportation and it was unreasonable for them to have assumed that somehow she changed her mind in the middle of the night.

56It was then not reasonable for the father and his counsel to rely on that provision in the order of July 18th on the basis that the mother's counsel did not immediately file a motion to vary the order due to this mistake. It was then further unreasonable for the father's counsel to commence a contempt motion, on October 23rd, when it was clear to her in the correspondence of September 24th that it was the mother's position that there was an error in the July 18th order and she was not wilfully disobeying a court order. Father and his counsel were aware that there was an error in the July 18th order and tried to take advantage of it. The father could have simply agreed to continue to transport the child, as he had done for the last 4 years and avoided all of the legal costs involved in these two motions.

57I therefore find that mother did not act unreasonably and should not be deprived of her costs as the successful party. However, I find that the father did act unreasonably both with respect to pursuing a motion for contempt against the mother and also for opposing her position to vary the July 18th order to change the transportation provision that had been included in that order in error.

c. The Lawyer's Rates:

58Counsel for the mother was called to the bar in 1997 and practiced taxation law until 2004 and since then primarily family law. A rate of $250 per hour is reasonable. I do not accept the submission of father's counsel that the mother's counsel is only entitled to the legal aid rate as somehow the mother will benefit if counsel is awarded her regular counsel rate. The financial arrangements between counsel and her client are not a relevant consideration. Counsel is entitled to claim her normal hourly rate. (See Ramcharitar v. Ramcharitar (2002), 62 O.R. (3d) 107 (SCJ); El Freky v. Tohamy, [2010] O.J. No. 60 (OCA).)

d. The Time Properly Spent:

59The time spent for preparing and arguing two motions is entirely reasonable. I do not accept the general submissions of father's counsel that the time was excessive. She does not cite any specifics. In fact, I assumed that the bill of costs would be substantially higher that the initial submission that the mother's counsel made seeking only $3,000.00.

e. The Expenses Properly Paid and Payable:

60No disbursements are claimed.

f. Any Other Relevant Matter:

61I am particular mindful that the type of tactics engaged in by father and his counsel in this case should be discouraged. When it is quite obvious that mistakes are made, I would have expected counsel to make appropriate arrangements to resolve such issues and not engage in such aggressive and unnecessary litigation.

62In considering all of these factors, I find that the mother is entitled to close to full recovery of all of her costs of $3,600.00.

Order as Follows:

1. The Respondent shall pay to the Applicant's counsel in trust costs fixed at $3,600.00 inclusive of disbursements and applicable taxes within 30 days.

2. Counsel for the Applicant shall prepare this order and the approval of the Respondent as to form and content is hereby dispensed with.