SUPERIOR COURT OF JUSTICE - ONTARIO
CITATIO N : Durbin v. Medina, 2012 ONSC 640
NEWMARKET COURT FILE NO.: FC-11-038171-00
DATE: 2012-01-26
RE: Stephen Lloyd Durbin, Applicant
AND:
Celia Toledo Medina, Respondent
BEFORE: McGee J.
COUNSEL:
Stephen Durbin representing himself with J. Isenberg as counsel on the Motion
W.H. Abbott, counsel for the respondent Celia Medina
HEARD: January 25, 2012
endorsement
[ 1 ] Mr. Durbin is 56 years of age and practices family law in Oakville. Ms. Medina is 33 and works in an administrative position for the provincial government. They are the parents of Joshua aged 13 and Samantha aged 9. The parties separated in early September 2010.
[ 2 ] The following June this Application was issued by Mr. Durbin. In the six volumes of the Continuing Record that have followed (seven if you count two volume 5s) all manner of issues have been litigated, primarily at Mr. Durbin’s instance.
[ 3 ] Early this month two substantive issues were before this court: Mr. Durbin’s motion for a Section 30 assessment, and the sale of the home in which Ms. Medina continues to reside with the children. An adjournment was granted to today’s date. I was advised at the commencement of the motion that the parties agreed this morning to the sale of the home. I was further advised that the mother has, with some reluctance, agreed to the assessment. The costs of the assessment were not agreed.
[ 4 ] Two issues thus remain: funding for the assessment and Mr. Durbin’s motion for questioning of the mother.
Funding of the Assessment
[ 5 ] Mr. Durbin’s counsel seeks an order apportioning the costs of the assessment in the ratio of 75% payable by Mr. Durbin and 25% by Ms. Medina. In calculating these percentages he relies on his income being in the estimated amount of $150,000. Ms. Medina’s counsel seeks an order that all of the costs be paid by Mr. Durbin - as he is seeking the assessment – with the ability to later reapportion.
[ 6 ] Reapportionment of expenses is by definition the ability to adjust payment after an event. Both counsels agree that this discretion should remain available to the court. The reframed question then becomes what amount each party ought to pay during the course of the assessment.
[ 7 ] The assessor has been chosen, has agreed to provide service and has provided a fee estimate of $6,000. I have some confidence in this estimate given the ages of the children, their ability to express views and preferences, and the dearth of clinical issues articulated by the father.
[ 8 ] An assessment is a neutral evaluation for the assistance of the court. Specifically,
Assessment of needs of child
- (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1) .
[ 9 ] Payment is provided for at subsection (12)
Fees and expenses
(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12) .
[ 10 ] Because the assessor has a duty to report to the court, it is important that he or she not appear to be an agent of one party, or that a party have the perception that payment of fees constitutes a form of personal retainer. I am therefore prepared to apportion the payment of fees in accordance with the parties’ incomes at the rate of 80% payable by Mr. Durbin and 20% by Ms. Medina; up to a total amount of $6,000.
[ 11 ] In fixing the proportionate shares at 80/20, I find that Mr. Durbin’s income is in the range of $200,000 per annum. More specifically, I prefer the evidence of Mr. Durbin’s 2010 Statement of Profit and Loss which shows income at $192,667 without add backs and gross ups for automobile and other personal expenses, and his April 25, 2011 sworn Financial Statement which states 2011 income at $204,000.
[ 12 ] Should the costs of the assessment (exclusive of HST) exceed $6,000; any additional costs will wholly be paid by Mr. Durbin. The assessment must focus on the children’s best interests and not become a vehicle for further litigation.
[ 13 ] At trial, either party may apply to the court for reapportionment of the costs of the assessment.
Questioning
[ 14 ] The enactment of the Family Law Rules O. Reg. 383/11 was an elegant and deliberate departure from the Rules of Civil Procedure. I am indebted to Justice Reilly for his fitting statement in Matthews v. Matthews 2008 CarswellOnt 2893 , that the object of the Family Law Rules , “is to obtain information in the least litigious way possible.”
[ 15 ] There is no “right” to Questioning. Rule 20(5) requires certain threshold criteria to be met:
ORDER FOR QUESTIONING OR DISCLOSURE
(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
The information is not easily available by any other method.
The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5) .
[ 16 ] Mr. Durbin’s motion for questioning does not meet any of the three criteria. I can discern no issue for which questioning of the mother would advance the case at this point. The parties’ respective parenting plans will be reviewed and assessed by the assessor. None of the minor irritants listed by the father as a topic for questioning are necessary to a determination of the children’s best interests.
[ 17 ] As her counsel identifies, there is no information on which the mother could be questioning which would be relevant to support, property or an equalization claim. Ms. Medina’s income is known, she held no net family property on the date of separation but for her pension and she has agreed to sell the home. There is no need at this time to question, and no information that can not otherwise be obtained.
[ 18 ] Mr. Durbin’s counsel rests heavily on Mr. Durbin’s need to test the credibility of the mother. But the proposed topics are largely de minimus , personal to Mr. Durbin and frankly, call into question his litigation goals.
[ 19 ] It is not the purpose of questioning to diminish, intimidate or attempt to embarrass a former spouse – particular a former spouse with whom one hopes to parent cooperatively. Neither ought the court permit questioning to add undue expense and delay to a proceeding, which at this stage, in this matter, is certain to follow.
[ 20 ] I am not prepared to permit Mr. Durbin the license to question his former spouse in these circumstances, irrespective of whether he intends to conduct the questioning himself, or through his choice of counsel for the day. Motion denied.
Costs
[ 21 ] At the conclusion of delivering the above decision, the court invited submissions for costs. The mother has been the successful party and is presumptively entitled to costs. Her counsel seeks full indemnity costs of $17,411.15. In the alternative he seeks substantive recovery of $14,318 or partial recovery of $11, 208.
[ 22 ] The fees include preparation time for matters resolved this morning, prior to the motion being heard. The fees do not include travel time, or the attendance costs for January 4 when the matter was before Justice Gilmore. She made an order that day for no costs.
[ 23 ] Are the fees sought reasonable? One of the measures of what is fair and reasonable is often arrived at by looking at what the other party has paid for his own legal fees with respect to a matter. Mr. Durbin submitted his own Bill of Costs. It states his hourly rate at $530, and that of his law clerk at $120. He submits that he and his law clerk’s time in this matter total $11,475. With the addition of disbursements, and a counsel fee for today of $5,000, his Bill totals $19,165.68. [1]
[ 24 ] I do not at all accept that Mr. Durbin’s stated hourly rate is a reasonable rate for a lawyer of his ability or experience practicing in Oakville. Neither do I accept that it is appropriate for a self represented lawyer to ascribe his hourly rate (and that of his employed clerk) to a personal claim for costs.
[ 25 ] What I can consider is the reasonableness of an account of $17,411.15 in circumstances in which the applicant has valued his costs for the same period in the amount of $19,165.68.
[ 26 ] I find the amount of fees sought to be reasonable.
[ 27 ] What is the appropriate rate of recovery? My primary focus is a comparison of Offers to Settle. On December 23, 2011 Ms. Medina’s counsel served an Offer on the issue of Questioning alone – that the motion be dismissed without costs. She has been wholly successful in this aspect and ought to be awarded a full recovery of costs pursuant to Rule 18(14) [2] from that day forward on the issue of questioning.
[ 28 ] On January 10, 2012, Ms. Medina’s counsel also served a comprehensive Offer to Settle all of the issues. That Offer was more advantageous to Mr. Durbin in two respects:
(a) Questioning was deferred until after the assessment rather than dismissed
(b) Mr. Durbin would pay all of the costs of the assessment.
[ 29 ] I state the latter in the face of my award that costs be shared 80/20 up to $6,000. Had Mr. Durbin accepted the offer he would be obliged to pay $1,200 more than what is ordered in this endorsement (20% of $6,000). However, he would not have risked an award of costs on the issue of Questioning, or incurred at least an additional $10,000 in costs from January 11 forward, including the costs of his counsel’s attendance today.
[ 30 ] Pursuant to Rule 18(14) I consider all of the costs incurred by Ms. Medina to be recoverable from January 11, 2012 forward, in the same manner as costs attributable to Mr. Durbin’s motion for questioning from December 24 forward.
[ 31 ] Mr. Durbin also served an Offer to Settle. It is dated January 16, 2012 and contains a number of personal terms that were not claimed within his Notice of Motion. It does contain a provision that the parties share the cost of the assessment. Agreeing to pay half the assessment would only have obligated the mother to pay $1,800 more than that ordered.
[ 32 ] In the same manner as I have observed above, the mother would have been better served to pay the additional amount than litigate the matter. However, at paragraph 13 of Mr. Durbin’s Offer he states unequivocally that no part is severable. This is a most unfortunate term. It prevented the mother from accepting any term of the Offer - at least two of which were wholly inappropriate to the drafting of an Offer - without having to accept all the terms. Mr. Durbin’s Offer is therefore of no assistance to him in mitigating the claim for costs.
[ 33 ] Modern cost rules are designed to foster three fundamental purposes per Serra v. Serra , 2009 ONCA 395 , [2009] O.J. No. 1905 (Ontario Court of Appeal):
to partially indemnify successful litigants for the cost of litigation;
to encourage settlement; and
to discourage and sanction inappropriate behaviour by litigants. [3]
[ 34 ] In summary, there was a clear path to settle this motion, if indeed certain of the relief ought even to have been advanced. Mr. Durbin chose not to settle from the period of January 11 forward. I will discount a portion of the amount sought in costs for the period prior to January 11 (not that relating to the motion for questioning) but otherwise look to the full recovery rate.
[ 35 ] Although determining costs is not simply an accounting exercise: Boucher v. Public Accountants Council 2004 14579 (ON CA) , [2004] CarswellOnt 2521, an award must at the same time give meaningful relief to a successful litigant who has acted reasonably.
[ 36 ] The applicant, Mr. Durbin shall forthwith pay costs to the respondent, Ms. Medina in the rounded amount of $16,000.
Justice H. McGee
Date Released: January 26, 2012
[1] Mr. Durbin included fees for the January 4 attendance which Justice Gilmore stated could not be claimed, and included travel time at the full rate of $530.
[2] Rule 18(14) provides for a full recovery of costs from the time than a more advantageous offer is served.
[3] In delivering reasons I impressed upon the parties the disproportionality of legal fees to date. If I use the figure proposed by Mr. Durbin and add it to applicant counsel’s Bill of Costs, total fees on this motion alone are $36,576. This amount would have paid for 6 assessments, not to mention a full college education for one of their children.