Court File and Parties
Orillia Court File No.: FC-17-117-00 Date: 2018-06-27 Superior Court of Justice – Ontario – Family Court
Re: Deirdre Michener, Applicant -and- Keith Carter, Respondent
Before: The Honourable Mr. Justice J.P.L. McDermot
Counsel: Douglas Anderson, for the Applicant Brian Ludmer, for the Respondent
Heard: In Writing
Costs Endorsement
Introduction
[1] On March 29, 2018, the parties argued an enforcement motion before me by way of a long motion. Both parties were represented by counsel. The major issue argued in the motion concerned the alleged failure of the Applicant, Deirdre Michener, to comply with several orders concerning communication between the Respondent, Keith Carter, and his children, as well as a failed access visit which was agreed to but did not take place on February 5, 2018. The Respondent also alleged that the Applicant did not communicate with him about the children as required by the order.
[2] In my decision, I found that the Applicant had failed to take the required steps to ensure that the children communicated with and visited their father as required by the various court orders. I allowed the Respondent specified access as requested, although I did not order access to take place in British Columbia (which was something the Respondent had specifically requested) as the children had not been to his home in many years. As well, I dismissed the Respondent’s request for a financial penalty which involved payments to be made into the children’s RESP accounts for each missed visit.
[3] Pursuant to that endorsement, the parties have now filed costs submissions. The Applicant suggests that there be no costs of the motion as success was divided and because any substantial award of costs would be a hardship on the Applicant, who also needs to care for the children. I agree that an award of costs as requested by the respondent would work a hardship: The Respondent seeks costs of $20,970.75 for his work on this file as an unrepresented litigant, as well as a further $31,519.77 for his lawyer’s work on the file. The Respondent therefore seeks a costs of well over $50,000 for this motion.
Analysis
[4] There are three issues before the court:
(a) Is the Respondent, Mr. Carter, entitled to his costs of the motion?
(b) If the Respondent is entitled to his costs, is he entitled to costs as a self-represented litigant when represented by counsel during much of the time for which he claims costs?
(c) What is the quantum of costs to be awarded?
Entitlement to Costs
[5] No offers to settle were exchanged by either party on the motion. Accordingly, entitlement to costs must be assessed based upon the principles set out in Rule 24 of the Family Law Rules, which dictate as to the criteria by which costs are awarded by the court.
[6] Generally, under rule 24(1) costs follow the event. The successful party is entitled to costs. An exception to this is unreasonable or bad faith conduct. A successful party may, however, be disentitled to costs because of unreasonable or bad faith conduct. In the case of a finding of bad faith conduct, the court loses some of its discretion as to costs: see Rule 24(4) which states that, should a court find there to be bad faith conduct, the court shall decide costs on a full recovery basis and order the party to pay them immediately.
[7] Mr. Anderson, on behalf of the Applicant, suggests that success was divided. I disagree. Success is not divided only because the moving party did not get everything he or she wanted. There were certain aspects of the Applicant’s motion which were dismissed, but this does not meant that the Respondent was not successful. It might simply mean that he was less successful than he otherwise might have been.
[8] Moreover, the major issue before the court was whether the Applicant was in breach of the terms of the court orders in this matter. I found that she essentially was. Although I found that the responsibility for the failure to communicate lay with both parties, I also found that the Applicant had not done everything that she could, or that she was obligated to do, to ensure that the children communicated with their father and visited with him as agreed to by the parties. For the parties, this was a major finding as one of the primary issues between them was whether the children could dictate the terms of their access and communication with their father. This was effectively a major victory for the Respondent and one of the primary issues argued on the motion.
[9] I also gave the Respondent some of the remedies that he requested including specified make up access. Although I did not order the monetary remedy requested, I did specify access and specified a pathway to the children seeing their father on a regularized basis.
[10] I therefore find that the Respondent was substantially successful in the result on the motion.
[11] The Respondent argues unreasonable and/or bad faith conduct on the part of the Applicant. I decline to find bad faith conduct on the part of the Applicant; as pointed out in the Respondent’s submissions, a finding of “bad faith conduct” under rule 24(8) is very high: See Bortnikov v. Rakitova, 2016 ONCA 427 at para. 29 and Scalia v. Scalia, 2015 ONCA 492 at para. 68.
[12] As noted in Scalia, bad faith conduct has to involve some element of intention; the behaviour must be with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour…or to deceive the other party or the court”: See S.(C.) v. S.(M.), (2007), 38 RFL (6th) 315 (Ont S.C.J.).
[13] Although I found the Applicant to be in breach of the various orders for access and communication, I do not find this to have malicious conduct as suggested by Scalia. In fact, that conduct may have been as a result of a strongly held belief by the Applicant that she should not force her children to do something against their wishes.
[14] Although the Applicant may be said to have acted unreasonably in failing to make the children available, I also find that the Respondent was unreasonable in the communications he had with the Applicant. As noted in my decision, I found the Respondent to be bullying and overly strident in his demands made of the Applicant on the Our Family Wizard (OFW) communications.
[15] I therefore find that on the basis of a substantial success on the motion, the Respondent is entitled to his costs of the motion. I decline to find either bad faith conduct or unreasonable conduct on the part of the Applicant.
Amount of Costs to be Awarded
[16] The Respondent is entitled to his costs of the motion. However, the Respondent has requested costs of more than $50,000 for argument of the motion. On the face of things, this would appear to be an excessive amount.
[17] Part of the reason for this is that the Respondent has claimed his costs as a self-represented person as well as his lawyer’s fees for preparation of material and argument of the motion. The first question is whether the Respondent can “double up” his own costs as an unrepresented litigant on top of his lawyer’s costs when his lawyer was not on the record but acted for him under a limited scope retainer. The other question is, based upon the principles of proportionality and the other principles used for a determination of costs, whether the quantum of costs requested is appropriate.
Is the Respondent entitled to his costs as a self-represented litigant when he is also claiming the costs of his lawyer’s representation on the motion?
[18] Mr. Ludmer is correct when he submits that unrepresented litigants may be awarded costs: See Fong v. Chan, (1999), 46 O.R. (3d) 330 (C.A.) at para. 23.
[19] However, I do not agree with the suggestion that Mr. Carter was unrepresented. It is acknowledged that Mr. Ludmer did not go on the record. However, he assisted Mr. Carter on an “unbundled services” representation insofar as he prepared Mr. Carter’s materials and represented him at Court on the two appearances on the motion. Mr. Ludmer assisted in negotiating the minutes giving rise to the failed access visits on February 1, 2018 (they were in his handwriting) and also prepared these costs submissions.
[20] Mr. Ludmer claims the costs of Mr. Carter, as he says that Mr. Carter’s work on the file reduced Mr. Ludmer’s costs on the motion. However, if Mr. Ludmer is charging in excess of $30,000 for a long motion, I would suggest that Mr. Ludmer’s costs were not reduced to any great extent. A legal bill of in excess of $30,000 for any motion seem to be excessive on their face, and do not appear to be reduced in any way. Mr. Ludmer provides no details of how Mr. Carter’s and Mr. Carter’s girlfriend’s assistance reduced his costs on the motion or as to what amounts of money were actually saved.
[21] As well, you cannot have it both ways. You cannot be represented by counsel and yet claim costs as an unrepresented litigant. The fact that Mr. Ludmer was not “on the record” makes no difference when Mr. Ludmer was obviously representing Mr. Carter on the motion and prepared all of the materials, including the factums and the casebooks for Mr. Carter. It is to be noted that Mr. Ludmer began working on the motion on October 9, 2017; Mr. Carter and his girlfriend began working on the motion on August 30, 2017, as far as the first entry in his “bill of costs” goes; however, his next entry after that is October 4, 2017, shortly before Mr. Ludmer’s time began to run. It appears that Mr. Carter was working on the motion during the same period of time that Mr. Ludmer was and it is unfair to allow a self-represented litigant to claim his costs only because his counsel is on a limited scope retainer rather than a full retainer. That allows a doubling up of costs which is not available to counsel who are fully on the record. In other words, a lawyer who is “on the record” cannot bill for his client’s time on the file (for example when he sends the affidavits or materials to his client to review and provide written responses) while a lawyer on an unbundled representation, according to Mr. Ludmer’s costs submissions, apparently is able to do so. There is no apparent rationale for this distinction.
[22] Finally, Mr. Ludmer and his client did not provide details of his retainer. To obtain costs for the litigant as well as the lawyers, the terms of that retainer must be disclosed in order to prove that the litigant’s work on the file went beyond that of a regular represented litigant. Was there some term of the retainer which might result in the litigant taking a more active role than is normally the case? This information was not provided in the costs submissions in the present case.
[23] For these reasons, I find that Mr. Carter’s time on the file and his girlfriend’s time on the file cannot be taken into account when assessing the costs of this matter as Mr. Carter was represented by counsel for this motion.
Quantum of Costs
[24] Costs to be awarded are assessed on the basis of the criteria set out in Rule 24(11) of the Family Law Rules which reads as follows:
(11) In setting the amount of costs, the court shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, 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.
[25] Respecting the criteria set out in subparagraphs (a), (c) and (d) of Rule 24(11), this requires a holistic review of the costs factors considering the relief requested in this matter. The underlying basis for these three factors is the rule of proportionality as set out in Rules 2(2) and (3) which speaks to dealing with the case in a manner which is proportionate to its complexity and importance.
[26] A concern that is expressed over and over again in the Courts of this province are the excessive costs of litigation. This is inevitable in an increasingly complex society and as the laws surrounding family law become increasingly difficult to navigate. Yet, the legal costs expended in matters result in increasing numbers of people becoming self-represented or unrepresented because they simply cannot afford counsel.
[27] The issues in this case were not overly complex. The real issue to be considered was whether Ms. Michener had taken sufficient steps to ensure compliance with the access and communications orders made in this matter. I found that she did not. I also found, on the basis of established case law, that she had to take increasingly positive steps short of harming the children in order to ensure compliance with the access orders. I finally had to consider the issue of remedies available in the case of an enforcement motion as opposed to remedies available in the case of a contempt motion.
[28] There was no mystery to the law surrounding these issues; neither were the points argued unique in any way. This issue had been litigated before the Court of Appeal and the Superior Courts of Justice on many other occasions.
[29] In other words, there is no reason why the legal costs in this matter needed to be in the range of $30,000. It is to be noted that Mr. Ludmer and his staff spent in excess of 90 hours in preparation for an argument of this motion.
[30] I find this to be excessive considering the complexity of the issues argued. As stated by Wildman J. in Murphy v. Murphy, 2010 ONSC 6204, 2010 CarswellOnt. 8616 (S.C.J.) at para. 20:
I am assuming that the decision to spend so much money preparing for this motion was Mr. Sapir’s rather than his counsel. Regardless of the outcome of the case, a client is not entitled to direct vast resources to litigation and expect full reimbursement. When the rules use the terms “full recovery costs”, there is an implied qualification that the costs incurred must be reasonable. There must be some assessment of the most effective use of resources to present the case, and some attempt to approach the matter in a cost-effective manner.
[31] I find 90 hours spent on preparing for and arguing this motion to be excessive under the circumstances, and not fully chargeable to the applicant in this costs award.
[32] I also note that on the first court appearance, this matter was set down for argument on a motions day for a one hour motion. I do not know whose responsibility this was; however, an agreement was arrived at that day and I take that into account in setting costs.
[33] I have already canvassed the issue of unreasonable conduct. Considering the communications between the parties and considering the fact that neither party provided an offer to settle this motion (in itself unreasonable conduct), I find that there was no unreasonable conduct by either party affecting the costs award in this matter.
Disposition
[34] I therefore find that the Respondent is entitled to his costs of the motion in the amount of $7,500 inclusive of disbursements and HST. Costs are payable within 60 days.
McDermot J. Released: June 27, 2018