Court File and Parties

COURT FILE NO.: 49542-14 DATE: 2016-05-03 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Andrea Dawn Doering, Applicant AND: Charles Leonard Doering, Respondent

BEFORE: The Honourable Mr. Justice G. A. Campbell

COUNSEL: Laura Tatum, counsel for the Applicant Barry T. Paquette, counsel for the Respondent

Endorsement Regarding Costs

[1] I have received and considered counsel’s written costs submissions regarding the argued motion of January 19, 2016 and the costs relative to obtaining the September 14, 2015 consent order referred to therein as “the costs of the adjournment”.

[2] As I observed then, in my written endorsement of January 25, 2016, success on the January motion “appears to have been mixed or partial”.

[3] I have now seen the various offers to settle and have a clearer view of the history of this litigation leading up to the January 2016 argument and, the Respondent’s subsequent (amended) offer of January 27, 2016, regarding his attempt to sever and settle the matrimonial-home-asset issue.

[4] I suppose that, given the significant increases in lawyers’ bills to clients that I have observed over the last two decades, I should not be at all surprised at the acceptance and willingness of litigants to pay huge fees for even the most mundane and pedestrian of matters as, for example, getting a recalcitrant respondent to make full, fair and complete (or indeed, even the most rudimentary) disclosure.

[5] This case is just such an example.

[6] It ill-behooves Mr. Doering to grouse of the quantum of costs sought by Ms. Doering that he be ordered to pay when for months he avoided, ignored or dodged her reasonable requests for sufficient (or any) documentation upon which she could make a reasonable offer to settle or, indeed, in this case, to try to negotiate without the need to bring any formal claim in court (with all of its attendant legal fees).

[7] I find that the Respondent’s tactics effectively forced the Applicant into court, to start her action and simultaneously seek disclosure and some immediate access to any of her chattels or either of their jointly owned properties.

[8] Some examples of Mr. Doering’s ill-advised strategies include: barring his wife from access to the matrimonial home, and to any of her chattels which he sequestered there; preventing her from any use or enjoyment of their jointly owned cottage (and chattels there); refusing to pay any spousal support at all (after 16 years of marriage and two children); ignoring or refusing to share information regarding their farm venture (including any information regarding the alleged “costs/expenses” that he later claimed that should be set-off against the $12,000 per year rental income); and in 2015 expecting her to accept his 2013 income figures when he knew that he had his 2014 data available upon which a more accurate and current basis for spousal support could be calculated.

[9] As well, while I accept that every litigant has an inalienable right to choose any lawyer that (s)he wishes, the Respondent’s changing lawyers (thankfully he is now with and committed to Mr. Paquette, his third lawyer on this file) created unnecessary and increased costs and fees for the Applicant. It would appear that his changing lawyers was another tactic that he employed in his win-by-attrition war with the Applicant. However, every unnecessary action often results in an equally unnecessary “re-start” of negotiations and a duplication of effort and paperwork by (in this case) the Applicant.

[10] Indeed, the Respondent did not make full disclosure until after:

1. He was forced (when he was “advised” by his then second lawyer) to accept the obvious and reasonable terms of the September 14, 2015 order; and
2. A four-way meeting in November where, at the meeting he finally produced his first real two page “offer” to settle (although the form of same looks more like a balance sheet and a second page of qualifications/explanation for his proposal).

[11] There is no way counsel for the Applicant could have advised her client to accept those numbers/that proposal until full and proper disclosure was effected. That didn’t happen until December 2015, well after the commencement of the motion and well into the action. If ever there was a reluctant participant, Mr. Doering is a prime example.

[12] The Respondent, once he retained Mr. Paquette, then followed up (properly) with an offer to settle in the correct format, just before the motion was argued on January 19, 2016.

[13] In that historic context, I make the following findings:

(1) The unfortunate and poor drafting of term #9 in the September 14, 2015 consent order is misleading. At the time (on September 14, 2015) I wondered why counsel and her client attended in open court for a matter that could have proceeded by way of the basket process (without the need for any attendance by anyone at all).

Clearly the Applicant intended the wording to include all of the costs expended to that date on the motion that were incurred to force Mr. Doering to accede to his obvious obligation regarding spousal support, listing the cottage for sale, her access to the cottage and a fixed time line for the disclosure sought by her two months earlier (which by the rules he was obliged to present).

Costs of an adjournment attendance of 10 minutes might attract an order of $150.00 or so.

In this case, and in these circumstances, the intent of the wording of the order was to identify that (all) costs of the motion to that date (i.e.: from July 1, 2015 to September 14, 2015) were to be decided by me within the context of the January 19, 2016 argued motion.

(2) While the results of the January 19, 2016 arguments were indeed mixed/partial, clearly Ms. Doering “won” the important issues (spousal support) and the income amount upon which support, spousal and child (Guideline and s.7) would be based.

I did not “dismiss” the Applicant’s claim regarding the cottage, but merely “deferred” it until the Spring of 2016 to allow the Respondent to “give it his best shot” in the interim, to try to sell it at no or very little real estate agent’s commission-cost to the parties. I do not consider how I addressed that issue a “loss” by Ms. Doering.

Ms. Doering also “won” an advance towards her eventual equalization payment. She wanted $100,000. He argued for $0.00. I ordered about $50,000.00. She clearly won that issue.

Mr. Doering wanted the consent, without prejudice, monthly spousal support of $827/month set by the September 14, 2015 order reduced to $471/month or nothing at all (as was argued at the motion).

However, I set his income figure and for the reasons written, chose the high end of the SSAG’s at $808/month; not much lower than what she was already getting.

Mr. Doering “lost” that issue (by a lot).

The child support issue was an “add-on” and I commend Mr. Paquette for his approach thereto.

It was the adult “child” Rebecca who “won” the issue of child support. Neither party won/lost that issue.

(3) I have examined the Applicant’s lawyer’s Costs Outline and Bill of Costs. I agree in part with Mr. Paquette that to saddle Mr. Doering with full responsibility for all of it in these circumstances would be unfair. Mr. Doering should pay partial costs, based upon an assessment of a sensible and fair result, consistent with what he might reasonably have expected to pay if unsuccessful: see Moon v. Sher (2004), 246 D.L.R. (4th) 440.

[14] I am of the view that intra-office “consultations” with other (more senior) lawyers and meetings to give instructions to law clerks or law students or in return, to be briefed by a law clerk who has drafted documents, are part of the cost of running a law office and form part of the ratio why the lawyer with carriage of the file can charge him-herself out at hundreds of dollars per hour. This propensity of some lawyers to charge clients for everything in his/her office (sort of an “a la carte” parcelization of services) seems to me to unduly increase lawyer’s bills to the client and to attempt to substantially reduce or eliminate a law firm’s usual overhead expenses). Normal and everyday tasks such as filing papers at court or sending a law student to “read the court file” and report back are part of a lawyer’s “overhead” and form part of the cost of running an office.

[15] Multiple charges to the client for “reviewing” the file also become highly suspect as “padding” the bill.

[16] Although the facts are somewhat different (there, one litigant hired a Toronto “Carriage Trade” counsel at great expense for a Kitchener matter) some of my observations in Czegledy-Nagy v. Seirli (2011), 2011 ONSC 119 may apply in this case:

While I recognize that modern legal practice has available to a client a team of legal staff, each contributing something to a motion, a losing litigant should not be expected to pay senior counsel supervising a junior counsel’s work or for the duplication of various lawyers “reviewing & revising” work already prepared (and billed to the client) by other lawyers or senior law clerks, or for the time counsel take to brief each other or their law clerks to prepare simple court documents or arrange for service of same.

Professor Czegledy-Nagy may hire as many lawyers as he wishes to have on his team, from whichever city he wants them to come from. That is his prerogative. (See Grant v. Grant).

However, no litigant should expect to drive up the cost of litigation in that manner for his/her own satisfaction or his/her need for attention and then to have the court saddle the other litigant with that bill.

In any event, the Court need only consider as one factor the amount that a successful litigant has expended to achieve success. Some litigants need more “hand-holding” than others and some counsel bill heavily for the slightest effort where others do not.

Therefore, despite Prof. Czegledy-Nagy spending almost $65,500.00 to get to a temporary order (which required two attendances on motions), the principle of reasonableness that directs my determination is whether a reasonable party, opposing Prof. Czegledy-Nagy’s motions could possibly anticipate an order for costs against her even approaching such a breathtaking quantum, were she to lose those motions.

[17] In any event, as reminded in the decision of Dingwell v. Wolfe 2010 ONSC 1044 (as reported in “McLeod’s Ontario Family Law Rules Annotated” at page 333):

“Costs is not a mechanical calculation of hours multiplied by rates, but one must always have in mind the overriding principle of reasonableness and the fundamental objective of preserving access to justice. The overall objective of the court is to fix an amount that is fair and reasonable for the unsuccessful party to pay, given the particular circumstance of the case, rather than an amount fixed by the actual costs incurred by the successful party. In family law, the expectation of the parties concerning the amount of costs is also a relevant consideration”.

[18] There now exists ample authority that I am to view the issue of costs of this motion in a flexible and balanced way, recognizing the wide discretion afforded by Rule 24 of the Family Law Rules, O.Reg. 114/99; Ostapchuk v. Ostapchuk, 2003 CarswellOnt 1661, [2003] O.J. 1733 (C.A.). Ms. Tatum’s client is entitled to her costs, but the quantum to be paid must reflect the factors in Rule 24(11), viewed flexibly and my findings, as they reflect the Respondent’s reasonableness: C.A.M. v. D.M. (2003), 67 O.R. (3d) 181 (C.A.). Any costs award, as well, must represent a fair and reasonable amount that should be paid, rather than any exact measure of the actual costs: Zestra Engingeering Ltd. v. Cloutier, [2002] O.J. No. 4495 (C.A.).

[19] The costs determination, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and document created: Pagnotta v. Brown, [2002] O.J. No. 3033, 2002 CarswellOnt 2666 (Sup. Ct.). See also Gale v. Gale, (2006), CarswellOnt 6328.

[20] After examining the factors set out in Rule 24(11) and applying them to the circumstances, positions, offers and tactics of this proceeding and using the “flexible vs. rigid adherence to hours billed times the hourly rate charged” approach set out by the case of Hackett v. Leung and the “fair and reasonable amount” approach encouraged by Boucher v. Public Accountants Council, [2004] O.J. No. 2634, OCA, I find that a reasonable, balanced and fair costs order to recognize the Applicant’s overall success is $10,500 (plus HST) for efforts leading up to and including the September 14, 2015 consent order and a further $5,000 (plus HST) for expenses incurred from and including September 15, 2015 until January 19, 2016.

[21] The Respondent is ordered to pay the total of those costs plus tax ordered of $15,500 (plus HST) forthwith given the party’s diverse financial positions (including their incomes and the reality that Mr. Doering enjoys the apparently exclusive use of all of their jointly owned assets AND (should) derives some financial gain by offering use of the Applicant’s share of the matrimonial home to his own mother and at least one of his adult and gainfully employed sons).

[22] Much of these costs were incurred by the Applicant to obtain personal spousal (and now) child support. I declare that $10,000 of the total costs ordered are “legal fees or other expenses arising in relation to support or maintenance”.

[23] As such, that amount is directed to be enforced by the Director of the Family Responsibility Office (see paras. 80 to 82 of the decision of the OCA in Clark v. Clark 2014, ONCA 175; s.1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996 c.31 as amended; and Wildman v. Wildman (2006), 82 O.R. (3d) 401 (CA)).

[24] Lastly, I am also aware of and have taken into account the implications of the recent decision of my brother Justice Pazaratz J. in Scipione v. Del Sordo 2015 ONSC 5982, that:

… the tax deductibility of legal costs is not a relevant factor in quantifying an award of costs to a successful litigant.

As he observed,

71 In addressing quantum, the Applicant asks the court to consider that the Respondent will be able to deduct most if not all of her legal fees from her taxable income, because they are incurred in relation to obtaining an order for child or spousal support.

72 He refers to Boland v. Boland, 2012 ONCJ 239 (OCJ) as standing for the proposition that a costs award should be reduced by projected tax savings to the costs recipient, because legal fees relating to support are tax deductible.

73 Boland was one of a handful of reported decisions in 2011 and 2012 which acknowledged the possibility that tax deductibility could impact on costs awards. The issue attracted a flurry of judicial attention – briefly.

74 But as Harper J. noted in Stevens v. Stevens, 2012 ONSC 6881 (SCJ) the issue has now been resolved, and tax deductibility is no longer a factor to be considered in quantifying costs.

[25] I thank both counsel for their skill and the professional manner in which they discharged their retainers on this motion.

G.A. Campbell J.

Released: May 3, 2016