Court File and Parties

Court File No.: 99/10 Date: March 29, 2012

Ontario Court of Justice

Re: Jason Marton - Applicant And: Ayala Willinger-Marton - Respondent

Before: Justice R. Zisman

Counsel:

• Darryl Glover for the Applicant
• Paul Marshall for the Respondent

Costs Endorsement

Introduction and Background

[1] The Applicant ("father") commenced a Motion to Change the terms of a separation agreement dated May 9, 2009.

[2] The parties shared the parenting of their two children Hannah Willinger-Marton, born on November 4, 2003 and Ellie Willinger-Marton, born on February 20, 2008. On a set off basis the father was required to pay the Respondent ("mother") $1,300.00 per month which would include child support and contribution toward the cost of a shared nanny. Between May to December 2009, the father paid the nanny $1,300.00 per month directly rather than pay the mother, as provided in the agreement. In November 2009, the mother terminated the services of the shared nanny and the father then began to pay the mother $650.00 per month. The father hired the nanny exclusively and paid her full salary of $1,300.00 per month. The mother hired and paid for another nanny.

[3] The mother filed the separation agreement with the Family Responsibility Office for enforcement of $1,300.00 per month as child support and put the father in a position of significant arrears. It was her position that the father was to pay her $1,300.00 per month as child support and that she expected that amount to continue. It was her position that she never agreed that the father only pay her child support of $650.00 per month and that they share the cost of the nanny equally. She deposed that she made many compromises in the separation agreement including relinquishing her claim for spousal support.

[4] Therefore the issues to be determined in the Motion to Change were the interpretation of the terms of the agreement regarding the amount the father was required to pay as child support and the sharing of the cost of the child care expenses and also the mother raised the issue of possibly setting aside the entire separation agreement.

[5] The father filed his Motion to Change on April 26, 2011 with the first appearance date being June 10, 2011. The first appearance was adjourned on consent to June 28th, 2011. The endorsement indicates the matter was adjourned as Mr. Marshall had "just been retained" to represent the mother and needed time to prepare responding materials.

[6] The matter was before me as the case management judge for a case conference on October 3, 2011. Both parties filed briefs. Mr. Marshall, counsel for the mother, advised the court he wished to bring a motion to remove Mr. Glover, father's counsel, as counsel of record as he alleged there was a conflict of interest. The record was endorsed that the case conference could not proceed as the preliminary issue of father's counsel being removed from the record had to be dealt with first. I also reserved costs, as in my view, this preliminary issue should have been dealt with prior to the case conference either by consent of the parties or by counsel submitting a form 14B to request that the court deal with this procedural issue prior to the case conference. A motion date was set for November 14, 2011. Counsel were able to agree on some disclosure being exchanged.

[7] Motion materials were filed by both parties including facta and books of authority. On November 14th, 2011, the date set for the return for the motion, Mr. Marshall, counsel for the mother objected to Mr. Glover, father's counsel, proceeding to argue the motion himself based on the father's affidavit. He submitted that based on the case of Marinangeli v. Marinangeli [2004] O.J. No.3082 (S.C.J.) at paragraph 26, it was necessary for Mr. Glover to file an affidavit himself to satisfy the court that he did not have any relevant confidential information that would require that he be removed as counsel of record. I accepted this submission but granted an adjournment and endorsed that Mr. Glover was required to retain other counsel who was independent and not affiliated with his office to represent him on the motion. Costs were again reserved and the motion scheduled to be heard on December 2, 2011.

[8] On December 2, 2011 counsel for the mother attended and advised the court that he was withdrawing his motion to remove Mr. Glover as father's counsel. The issue of costs was to be spoken to at the next court attendance.

[9] Subsequently both counsel agreed to submit written submissions as to costs for the costs of the October conference and the costs of the withdrawn motion. I have received and reviewed the submissions.

Position of the Parties

[10] It is the position of the father that costs should be awarded on a substantial indemnity basis for the preparation of materials and the appearances on October 3 and November 14, 2011 due to the mother's counsel attempts to delay this matter and subsequent cost to his client. He seeks costs of $12,935.00 which includes applicable taxes and disbursements.

[11] It is the father's position that as a result of Mr. Marshall's delays the father was forced to wait almost four months from the initial case conference date to address the substantive issue of whether or not the father overpaid his child support creating financial hardship for the father and to obtain some temporary relief pending the trial in this matter.

[12] It is submitted that Mr. Marshall's inability or unwillingness to address the procedural issues in advance of the case conference resulted in his client incurring unnecessary legal expenses. It is submitted that all costs relating to the October and November court dates were thrown away with the exception of the preparation of the case conference brief and financial statement. However, due to the passage of time from the initial date, additional time was necessary to update the documents for the case conference that was held in February 2012.

[13] It is the mother's position that she acted reasonably and in good faith in her belief that Mr. Glover should disqualify himself from acting for the applicant in the proceeding and that the issue was raised properly at the case conference. It is submitted that there was no intentional delay that prejudiced the father and that the mother has acted reasonably to attempt to expedite the proceeding. It is submitted that at the case conference that was subsequently held on February 3, 2012 the mother agreed to execute any necessary consents for the Family Responsibility Office to stay enforcement of the $400.00 per month it was collecting on account of the alleged arrears of support and that the necessity of a settlement conference was waived and the matter set for a trial management conference.

[14] It is the mother's position that there should be no order for costs. However, if costs are awarded that they be reserved to the trial judge or assessed on the amounts properly attributable to the motion at less than the time billed or the hourly rate charged and fixed on a partial indemnity scale of 30% to 50% and payable on a monthly basis to account for the mother's limited means.

Applicable Legal Principles

[15] Rule 14 (16) of the Family Law Rules, O. Reg. 114/99 provides that a party making a motion may withdraw it in the same way as an application or answer is withdrawn under Rule 12. Rule 12 (3) provides:

A party who withdraws all of part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties otherwise agree.

[16] As costs are also being sought for the October case conference, Rule 17 (18) is applicable. Rule 17 (18) provides that a judge shall order costs of the conference, if a conference is adjourned because a party is not prepared or has otherwise not followed the rules.

[17] If a party is determined to be liable to pay costs, the court must fix costs having regard to the factors set out in Rule 24 (11). The factors which must be considered are:

(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.

[18] 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] O.J. No. 2634 (Ont.C.A.), the award of costs must be fixed at an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings.

Analysis

[19] Costs are claimed for the wasted attendance at the case conference. In his costs submissions, Mr. Glover provided copies of correspondence he sent to Mr. Marshall to attempt to determine if he intended to raise the issue of a conflict of interest and if so, to determine how to deal with that issue.

[20] Mr. Glover wrote to Mr. Marshall on April 26, 2011 to advise that he had been retained by the father with respect to his Motion to Change and to inquire if he was still retained by the mother. Upon being advised that Mr. Marshall was retained, Mr. Glover then inquired by correspondence dated June 7, 2011 as to whether he intended to bring a motion to remove him as counsel of record as this issue had previously been raised by his client in proceedings in the Superior Court of Justice and the mother had initiated a complaint against Mr. Glover with the law society. Mr. Glover further requested that if he intended to bring a motion that they co-ordinate dates so the matter could move ahead in a timely fashion.

[21] Several days later Mr. Marshall confirmed that he intended to proceed with the motion. Mr. Glover advised him that he expected that the motion would proceed prior to the case conference so that if it was successful there would be time for his client to retain new counsel in time for the case conference and avoid further delays. Mr. Marshall advised that he would not bring the motion until after the case conference that had been scheduled for October 3, 2011.

[22] Accordingly for almost four months nothing was done. Both counsel filed case conference briefs. The issue of the conflict of interest was raised at the outset of the case conference. As a result the conference could not proceed.

[23] In my view, Rule 17 (18) is broad enough to permit a court to award costs where the conference cannot proceed if counsel is not willing or able to deal with the substantive issues before the court.

[24] Mr. Glover further submitted that as a result of the motion then being scheduled to proceed on November 14, 2011, which did not provide a great deal of time for counsel to prepare he wrote to Mr. Marshall on October 31, 2011 to confirm that he was still proceeding with his motion and received no reply. He wrote again on November 7th and stated that as he had not received a reply, he assumed that the motion was not proceeding and that the matter would proceed as a case conference on the return date. The motion was then served on November 9th. Mr. Glover had previously brought to Mr. Marshall's attention that as the court office was closed for Remembrance Day on November 11th that he would not have sufficient time to file a response and inquired if counsel could agree on another timeline than that endorsed by the court. There was no reply to this request. Mr. Glover was able to prepare responding materials but submits that he had to work his staff for the entire day on November 11th to prepare.

[25] As previously indicated on November 14th, Mr. Marshall raised a further procedural issue namely that Mr. Glover could not argue his own motion. Mr. Marshall had not previously alerted the court or Mr. Glover to this issue. In response as to why the issue was only raised on the day of the motion, Mr. Marshall essentially took the position that it was not up to him to instruct other counsel about the law.

[26] The motion was then adjourned to December 2, 2011. It is submitted by Mr. Glover that he had to invest a significant amount of time to find someone who would be available on short notice and who had the time to adequately prepare for the motion. His Bill of Costs indicates that he spent a half hour of his own time doing this.

[27] On November 26, 2011, Mr. Marshall sent correspondence to Mr. Glover that his client was withdrawing the motion to have him removed from the record. The correspondence stated that his client, "reserves the right to raise this issue again at a later point should your client's application proceed to trial." Mr. Glover took the position that if the motion was withdrawn the issue was permanently closed and that this on-again, off-again motion had already caused his client enough harm.

[28] According to Mr. Marshall he offered to convert the return date for the motion into a case conference date. By that time, Mr. Glover submits that his schedule had become busier and he could not arrange another case conference date until February 1, 2012.

[29] In my view, the manner in which the procedural issue was dealt with by Mr. Marshall resulted in a waste of the father's financial resources for the attendances of the October case conference and the November motion date. The father is therefore entitled to costs of the case conference that could not proceed in October and ultimately the motion to remove Mr. Glover was withdrawn, but only after there was a court attendance and materials were prepared. Applying factors to be considered in Rule 24 (10), I make the following findings.

Importance, Complexity or Difficulty of the Issues

[30] I do not question the importance of a motion to remove a counsel of record if there is a conflict of interest. Mr. Marshall submits that despite the court's perception that the concerns raised by the mother were not reasonable, it was an issue of fundamental importance and that the mother should not be reprimanded by awarding costs against her.

[31] At the case conference, I did raise some concerns about the strength of the mother's case to remove Mr. Glover as counsel of record based on the facts set out in her brief. But I was clear with both counsel that the issue could not be properly assessed until both parties had an opportunity of filing proper affidavit materials. At that time, the issue was raised in the mother's case conference brief and the father had not had an opportunity to respond and it was also possible that the mother could expand on her concerns with greater detail in an affidavit. It is for this reason that a motion date was set to argue the motion on its merits.

[32] It is clear that the issue was complex as both counsel prepared and filed not only affidavits but prepared extensive factas containing legal arguments and they filed case briefs.

Reasonableness of Each Party's Behaviour

[33] I accept that the mother acted reasonably in raising the issue of a potential conflict of interest. However, as she withdrew her motion there was never any adjudication on the merits.

[34] The concern is the manner in which this matter was brought before the court. Mr. Marshall was on notice that father's counsel wished to proceed with such a motion, if it was to be pursued, prior to the case conference. It is submitted by Mr. Marshall that he was governing himself by Rule 14 (4) that requires a case conference to be held prior to a motion. However, counsel could have for example, submitted a Form 14B requesting that a motion date be set for this procedural motion to be heard prior to the case conference or requesting directions on how to proceed. He could have agreed that the case conference only deal with the procedural issue of the perceived conflict of interest and thereby saved the expense of preparing case conference briefs that dealt with the substantive issues. By choosing to proceed in the manner he did, the case conference could not proceed and both parties incurred unnecessary legal expenses.

[35] The motion did not proceed on November 14th due to the issue raised by Mr. Marshall that Mr. Glover could not argue the motion. Although in an adversarial system, I accept that he was under no obligation to raise this issue prior to the motion, I question what he achieved by this tactic. Mr. Marshall was aware that it was Mr. Glover's intention to appear as counsel and argue on the basis of his client's affidavit. If he had raised this issue prior to the motion, the motion could have been adjourned on consent or if enough notice was given, other counsel could have been retained. Again the motion needed to be adjourned.

[36] I am mindful that the overriding principle of the Family Law Rules is to deal with cases justly and ensure that the procedure is fair to all parties and is conducted in a way to save the parties' expense and time. The manner in which mother's counsel dealt with this preliminary issue did not meet any of these objectives.

Lawyer's Rates

[37] Mr. Glover's Bill of Costs indicates his hourly rate is $350.00 per hour. Mr. Marshall submits that he has no way to determine if this is reasonable since Mr. Glover did not provide a statement of his years of experience. He submits that he charges $300.00 per hour and has 19 years of experience. Although Mr. Glover appeared to be experienced counsel, I agree that I have no evidence as to his actual years of practice. Based on my general knowledge of lawyer's rates, hourly rates of $300.00 to $350.00 are not unreasonable for experienced counsel. I do not see any reason to attribute less than $300.00 per hour to him, being the same rate charged by mother's counsel.

Time Spent

[38] The Bill of Costs submitted indicates that father's counsel spent a total of 26.6 hours relating to preparation and attendance at the October case conference and for his attendance and preparation of motion materials. A further 12.75 hours was spent by his law clerk and student at law.

[39] It is the mother's position that the time spent by both counsel and his student is excessive, and that some of the work related to other matters than the motion to remove him as solicitor of record. I was not given any comparison to the time that mother's counsel spent preparing motion materials and doing research which would have been a useful comparison.

[40] It is difficult for the court to second guess the amount of time counsel spends in preparing materials, preparing for court and meeting with a client. As was pointed out by mother's counsel this was a complex issue and one that does not arise frequently. It is not unreasonable that counsel would have had to research the law regarding conflict of interest. It was reasonable to use the services of his student and law clerk to reduce costs. I agree that the Bill of Costs does not specify what services were performed by the student or law clerk.

[41] The mother's counsel also submits that some of the work regarding the preparation of the case conference brief and financial statement would have had to be done in any event. I agree with this submission and would deduct at least half of the time of counsel's meeting with his client to review documents and would also deduct the time spent in preparation of the brief and financial statement.

[42] The mother's counsel also questions the time docketed for attendance at the October case conference and November 14th motion date. He submits that he only docketed .9 hours and 1.7 hours respectively whereas father's counsel docketed 4 hours for each of these attendances. I note that father's counsel does not practice in this jurisdiction so it is possible that he has included his travel time but the Bill of Costs is not specific in this regard. However, the docket entry for both dates also indicates meeting with his client that may have occurred prior to the actual attendance in court. In view of the lack of specifics regarding these times, I agree that some time should be deducted.

Expenses Paid

[43] No issue was taken with the reasonableness of the disbursements which were only $253.57.

Other Relevant Factors

[44] It is submitted that after these attendances, the mother who was pregnant miscarried in labour. She experienced a significant amount of psychological stress and was required to take a leave of absence from work. It is submitted that, "she is in receipt of social assistance benefits through employment insurance and cannot afford to reimburse the applicant for his case conference and other costs." I have reproduced this submission verbatim as it is confusing in that when the mother is employed she was earning approximately $70,000.00. At the time she filed her financial statement she was already in receipt of employment insurance due to a high risk pregnancy. Employment insurance is not considered to be social assistance.

[45] Although the mother's current reduction in employment income is a relevant consideration, it is only a temporary situation as it would be expected that she would return to her employment. Accordingly, although she may not be in a financial situation to immediately pay a costs order she will be able to do so in the future. Her current circumstances cannot relieve her of an obligation to pay costs.

Conclusion

[46] In summary, I find that the father is entitled to be compensated for costs with respect to the attendance at the case conference on October 3, 2011 as this was a wasted attendance due to the manner in which father's counsel chose to proceed. I further find that the father is entitled to be compensated for his attendance on November 14, 2011 with respect to the motion to remove him as counsel of record which again did not proceed due to the manner in which mother's counsel chose to proceed. He is further entitled to be compensated for all of his preparation for that motion that ultimately was withdrawn by the mother.

[47] Having considered the relevant factors set out above, I find that a fair and reasonable amount of costs to be payable by the mother to the father is $9,000.00 inclusive of all applicable taxes and disbursements.

[48] I make no order as how the amount should be paid, namely on a monthly basis, as requested by the mother. I have no information as to when the mother will be returning to work or her ability to make monthly or a lump sum payment. Counsel are able of course to negotiate the terms of payment otherwise costs are payable in the usual course namely within 30 days.

[49] There will be an order as follows:

Order

The Respondent, Ayala Willinger-Marton shall pay to the Applicant, Jason Marton his costs fixed at $9,000.00 inclusive of all applicable taxes and disbursements. Payable within 30 days unless counsel agree otherwise.

Zisman J.

Date: 29 March 2012