ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 99-3484-01
DATE: 20120327

BETWEEN:

GEORGIA ANNE CLARK Applicant – and – GREGORY LAWRENCE CLARK Respondent

W. Abbott and A. Mastervick, for the Applicant
R. Peticca, for the Respondent

HEARD: March 23, 2012

C.J. CONLAN, J.

[ 1 ] Georgia and Gregory Clark have been fighting each other in the Courts for several years. The fight is over. All that is left is to deal with the money. Then all efforts can be focussed on the best interests of their two lovely daughters.

[ 2 ] This decision on costs follows the lengthy Trial of this matter in Brampton and my Endorsement of 03 February 2012 and my Reasons for Judgment dated 14 February 2012.

[ 3 ] Ms. Clark has served and filed extensive written materials on costs. Mr. Clark filed nothing in writing. Neither did his former counsel, Mr. Peticca. Written submissions were not required. I heard oral submissions on costs in Owen Sound on 23 March 2012. I heard from Mr. Abbott for Ms. Clark, Mr. Clark for himself (after his counsel was removed from the record) and Mr. Peticca (Mr. Clark’s former counsel) who kindly attended by teleconference as a friend of the Court.

[ 4 ] Ms. Clark was largely successful at Trial. She seeks a costs award of $234,411.16 plus $1800.00 all-in for the attendance at Court on March 23.

[ 5 ] I have considered carefully Rules 18 and 24 of the Family Law Rules. I have considered the parties’ respective Offers to Settle the issues at Trial. I have reminded myself of the general principles of costs including the overriding objective to make an award that is just and reasonable in all of the circumstances. I have reviewed the detailed Bill of Costs submitted by Ms. Clark’s counsel. I have reviewed the case law filed by Mr. Abbott. I have taken in to account all of the relevant factors including the conduct of Mr. Clark outlined at paragraph 36 of Ms. Clark’s written submissions. That conduct includes the fact that Mr. Clark has a history of not complying with Court Orders.

[ 6 ] Mr. Abbott submits that Ms. Clark did better after Trial than what she proposed in her Offers to Settle. Mr. Clark does not dispute that. Neither does Mr. Peticca. I agree with Mr. Abbott. As such, Ms. Clark is entitled to full recovery of costs after the first Offer to Settle. She is entitled to partial indemnity costs up to the date of that first Offer to Settle. She is further entitled to reimbursement of $2825.00 as the costs paid to Dr. Goldstein for his attendance at Trial. Finally, the amount requested, $1800.00 all-in, is reasonable for the attendance at Court in Owen Sound on March 23.

[ 7 ] Mr. Clark takes issue with the total amount claimed by Ms. Clark. He suggests $10,000.00 total to be paid out of Court as that amount was already posted (late) by Mr. Clark as security for costs after the Trial commenced. That suggested amount is so terribly and unreasonably low as to be absurd. Mr. Clark argues that Ms. Clark requested more than $225,000.00 total in relief at paragraph 74 of her December 2, 2011 Affidavit; that she received after Trial less than $26,000.00; and that Mr. Clark had offered $10,000.00 in January 2012, before the Trial started. Those submissions are irrelevant. They do not assist Mr. Clark’s argument. They have nothing to do with whether Ms. Clark did better after Trial than what she offered to settle for.

[ 8 ] Mr. Clark submits further that the Trial lasted 10 days when it was expected to last 2 days. That may be true, but all counsel and both parties are equally responsible for the vast underestimate of the Trial time. Either party could have attempted to settle the matter at any time after the Trial began. This submission is no reason to slash Ms. Clark’s Bill of Costs. There is no evidence to support Mr. Clark’s assertion that Ms. Clark’s counsel deliberately prolonged the Trial. In fact, the longest part of the Trial by far was Mr. Peticca’s cross-examination of Ms. Clark.

[ 9 ] Mr. Clark also states that he has been billed more than $100,000.00 by his own counsel. That is equally irrelevant unless it is meant to suggest that Ms. Clark’s counsel are gouging in comparison. I cannot draw that conclusion without knowing the details of Mr. Clark’s former counsel’s retainer, time dockets and hourly rates, all of which I know nothing about.

[ 10 ] Mr. Clark submits that he struggles financially with children to support. His ability to pay is a factor that I have considered, although that cannot justify an award significantly less than what Ms. Clark is entitled to.

[ 11 ] Mr. Clark points out that his income is a small fraction of Ms. Clark’s. That is irrelevant except as it goes to Mr. Clark’s ability to pay.

[ 12 ] Finally, Mr. Clark argues that there is no authority to award costs for work done going back to 2008, well before the Trial commenced. That is wrong. The Family Law Rules specifically provide for costs of the “case” – Rule 24(1). This case goes back to 2008.

[ 13 ] Mr. Peticca focussed his comments exclusively on Ms. Clark’s Bill of Costs. He argued that there was duplicity in that the Bill includes time dockets for two counsel, Mr. Abbott and Mr. Mastervick, at the Judicial Pretrial Conference on 04 January 2012 and throughout the Trial. Mr. Peticca submits that Mr. Mastervick’s attendance was not strictly necessary at those Court appearances; that he essentially was a note taker. Mr. Peticca has calculated, and I have confirmed myself as accurate, approximately $36,000.00 in time dockets for Mr. Abbott during the Trial plus about $34,000.00 for Mr. Mastervick. I will return to this issue after dealing with the other submissions raised by Mr. Peticca.

[ 14 ] Mr. Peticca also questions the reasonableness of $5000.00, approximately, charged for Mr. Mastervick’s preparation of Ms. Clark’s Request to Admit and roughly $1700.00 for his preparation of the various documents Briefs for Trial. I see no merit in that submission. That $6700.00 total is very reasonable for the amount of work that must have been expended to prepare one of the most detailed and extensive Requests to Admit that this Court has ever seen in civil or family litigation and numerous documents Briefs for Trial, the latter which were marked Exhibits and were used frequently by both counsel in questioning witnesses at Trial. These documents were well assembled, helpful to the Court, undoubtedly shortened the Trial and were referred to in my Reasons for Judgment.

[ 15 ] Finally, Mr. Peticca submits that there are entries in Ms. Clark’s Bill of Costs which include time spent for (i) steps where costs were already ordered and paid by Mr. Clark (the Orders being for $3200.00 on 21 May 2009, $2500.00 on 22 May 2009 and $5000.00 on 21 October 2009) and (ii) work that related to interlocutory proceedings, like motions, where the presiding Justice specifically ordered no costs. I reject that argument. Mr. Abbott claims that there are no entries in the Bill of Costs for time spent on matters where costs were ordered and paid or where the Court at the time specifically ordered no costs. Mr. Abbott states that there is time included for work that relates to matters where the presiding Justice ultimately reserved costs – that is quite appropriate in the Court’s opinion. I have studied the Bill of Costs for the periods of time in question. I cannot decipher from the time dockets whether they relate at all to work done in connection with the Court attendances on May 21, May 22 or October 21, 2009 or a Court attendance for which I can see from an Endorsement or Order that no costs were ordered. The amount of money in question here is a total of about $14,000.00 (according to Mr. Peticca, $6300.00 with regard to the May 21 Court attendance, $6300.00 regarding the May 22 Court attendance and $1500.00 for the October 21, 2009 Court appearance). In the end, it matters not as the Court’s ultimate decision is to discount the Bill of Costs in an amount more than $14,000.00 in any event, but for other reasons.

[ 16 ] The argument with more substance advanced by Mr. Peticca is the submission regarding whether it is fair to force Mr. Clark to pay for two lawyers on behalf of Ms. Clark at the Pretrial and throughout the Trial. First, this Court wants to emphasize that this case was exquisitely prepared and impeccably presented by Ms. Clark’s counsel. Mr. Mastervick was not, in my view, as mere note taker at Trial. He assisted Mr. Abbott with detailed notes, yes, but he also suggested questions to Mr. Abbott from time to time; reminded Mr. Abbott about certain issues not already covered; located key documents for Mr. Abbott; and generally performed the role of junior counsel throughout the Trial. His participation was not mere “dressing”.

[ 17 ] Having said that, and without taking anything away from the admirable skill and competence with which Ms. Clark’s counsel performed at Trial, I have decided for the sake of fairness and reasonableness to reduce the time dockets for Mr. Mastervick for the Judicial Pretrial Conference and throughout the Trial by fifty percent. Using round figures, I will therefore be deducting $18,000.00 from the total fees claimed by Ms. Clark (that is about half of the $1700.00 plus $34,000.00 attributed to Mr . Mastervick for the Pretrial and the Trial).

[ 18 ] We now come to the ultimate question: taking in to account all of the circumstances including Mr. Clark’s ability to pay, what would be a fair and reasonable amount to award for costs? Mr. Clark is hardly someone who garners much sympathy from the Court, however, he is a father. I do not want to crush him. Ms. Clark requests a total of $234,411.16 plus $1800.00 for the Court attendance on March 23. The calculation of the $234,411.16 as outlined at paragraph 41 of Ms. Clark’s written submissions on costs is correct. I have already decided to reduce the total fees claimed by $18,000.00. This Court will exercise its discretion to further reduce the total award to $185,000.00 even, all-inclusive. That represents a total discount of approximately $50,000.00.

[ 19 ] This Court Orders that Mr. Clark pay to Ms. Clark the sum of $185,000.00 for costs.

[ 20 ] As contemplated by section 1(1) of the Family Responsibility and Support Arrears Enforcement Act, 1986, as amended, the $185,000.00 in costs is to be enforced in its entirety by the Family Responsibility Office (FRO) as a lump sum spousal support Order.

[ 21 ] Although Mr. Clark vigorously opposed that, Mr. Peticca made no submissions on that issue, and more important, enforcement through the FRO is well justified in this case. The authority for such an Order can be found in the decisions of the Court of Appeal for Ontario in Drygala v. Pauli, 2003 48241 (ON CA), 167 O.A.C. 274, Wildman v. Wildman, 2006 33540 (ON CA), 215 O.A.C. 239 and Writer v. Peroff, 2006 CarswellOnt 6218. Mr. Clark is an experienced litigant who has a history of disobeying Court Orders (see paragraph 36 of Ms. Clark’s written submissions on costs as well as my Reasons for Judgment). He has attempted to make himself “Judgment-proof”. This is one of those cases where, to be anything more than illusory, the costs award must be enforced through the FRO.

[ 22 ] It is high time for this saga to end. The priority must be the children.

[ 23 ] Counsel for Ms. Clark are to contact the Trial Coordinator in Owen Sound to seek three potential dates and times for a teleconference to discuss any settlement offers that were made on the issue of costs. Counsel for Ms. Clark will provide those three possible dates and times to Mr. Clark by electronic mail. Failing any response from Mr. Clark within 48 hours of the e-mail, counsel for Ms. Clark will choose one of the dates and times and advise the Trial Coordinator who will, in turn, advise Mr. Clark and Mr. Peticca accordingly. Mr. Peticca is not required to attend that teleconference, although he may if he wishes as a friend of the Court. It is at that time that the Court will review the settlement offers.

[ 24 ] Thank you to Ms. Clark, Mr. Clark, Mr. Abbott and Mr. Mastervick for attending in person in Owen Sound on March 23. And thank you to Mr. Peticca for his helpful submissions as a friend of the Court.

C.J. CONLAN, J.

Released: March 27, 2012

COURT FILE NO.: 99-3484-01
DATE: 20120327

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Clark v Clark REASONS FOR JUDGMENT RE COSTS C.J. CONLAN, J.

Released: March 27, 2012