ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-13-18881

DATE: June 6, 2014

APPLICANT

Jesse Nathan Rosenberg

RESPONDENT

Arielle Candice Minster

In person, without a lawyer

Jeffery Wilson, for the respondent mother

HEARD: By written submissions

Perkins J.

Issues

[1] This endorsement deals with the costs of the motions and appeal I heard on January 13, 2014 and decided on February 5, 2014, with reasons reported at 2014 ONSC 845. Both parties have provided written costs submissions and have not requested an oral hearing.

[2] The respondent mother brought a motion and appeal in respect of two arbitration awards. She was entirely unsuccessful. The father moved for an order incorporating the two awards into an order of the court. His motion succeeded. As the successful party, he is entitled to costs.

[3] The father asks for full recovery of his costs, in the amount of $62,933.53. The mother acknowledges the father’s success and asks for relief from any costs liability, or in the alternative, a costs award of no more than $15,000 to the father.

[4] The father’s lawyer wrote to the mother’s lawyer on June 11, 2013 (the letter is for some reason dated May 8, 2012), before he brought the motion and before the mother served her court proceedings, asking for consent to an order incorporating the first (March 13, 2013) arbitration award into a court order. The offer said there would be no cost to the mother if she consented by June 12, but after that date, the father wanted his costs “on a full recovery basis.” The mother did not consent, so the father served his motion on July 2. On August 15, the father reiterated his offer of June 11 was still open. The father served another offer on January 9, 2014. It revoked the two previous offers. In it, the father offered terms that the first and the supplementary (September 4, 2013) arbitration awards would be incorporated into court orders, the mother’s proceedings to set the awards aside would be dismissed and the mother would pay costs of $15,000 to the father. This last offer was open until the commencement of the hearing.

[5] The father claims for 145 hours of lawyer and law clerk time spent on the motions and appeal I heard, in addition to 35 hours of his own time. The father is himself a lawyer. He wants compensation for his own time at $250 an hour, relying on Fong v Chan (1996), 1999 2052 (ON CA), 46 OR (3d) 330 (CA). This is represented as time spent doing legal work rather than the time a party would inevitably or normally spend on the case.

[6] The father also cites a prior costs award in this case, reported at 2011 ONSC 5496, in which a motion judge said:

I am not prepared to discount this award of costs because the mother's income is in the range of $20,000. She is clearly litigating well above her personal means. One who pursues litigation within a certain fee range exposes oneself to the risk of costs within that same range. The mother enjoyed no success on this motion, served no offer to settle and had both her claims for relief dismissed. She cannot now claim an inability to pay costs after having initiated significant litigation in which she was not successful. [at para 15]

[7] He notes as well that at the hearing, the mother’s lawyers acknowledged she had spent about $150,000 in legal fees in total on the case. The father says her available means are vastly greater than her approximately $87,000 income. The mother says she is living at her mother’s home in order to save the money to pay off her legal fees.

[8] The mother submits that her actions in this case were in good faith and were driven by her perception of the child’s best interests. That is nothing unusual. It ought to be so in every case. It is not of itself a reason to depart from the principles in rule 18(14) or rule 24 of the Family Law Rules.

[9] The mother did make a reasonable offer on October 20, 2013. It accepted much of the arbitral awards, but departed from them in some important respects. It also dealt with the unresolved child support issues and was a non severable package. The father chose not to accept the package. As of the hearing before me, the child support issues had still not been resolved.

[10] The mother questions the recovery of lawyer fees for times when the father did not have a lawyer on record. It is unfortunately common, in both family and civil cases today, for lawyers to be retained only for appearance at a particular conference, motion or appeal. They never go on the record in the traditional sense of from start to finish of the case. This is almost always a matter of pure economics. The mother questions how the father can claim for both his own time and a lawyer’s time in preparing for the motions and appeal in this case, when no lawyer was on the record. I see no inconsistency here if the father did some of the legal work and leg work himself, while consulting with a lawyer on the preparation of materials and strategy for the motion or appeal. I do not accept that a party is unable to claim for lawyer time if the lawyer is not on the record. It has always been open to a party to claim and recover fees for a lawyer on the record and another lawyer from a different office, for example as counsel or as a second chair, who is not on the record. In this case, the lawyer time claimed is like the counsel or second chair lawyer.

[11] I accept the mother’s submission that the costs claimed must, all in all, be reasonably proportional to the issues and be reasonably what the losing party might expect to pay: Boucher v Public Accountants Council, 2004 14579 (ON CA), [2004] OJ no 2634 (CA).

[12] The first step in the matters before me was the motion served on July 2, 2013. The first date for lawyer time is June 11, 2013 and the docket entry shows a consultation respecting the motion about to be served. There were a number of different processes undertaken by the parties and a number of appearances were required before the matters came on before me in January. The issues were legally and procedurally complex and were, of course, of the utmost importance to the parties and their child.

[13] There does not appear to be any good reason to depart from the principle declared in rule 18(14) that the father, who achieved a result as good as his offer to settle, should have full recovery of his costs from January of this year, if not from the very start, subject only to the reasonableness of the charges in their totality. The mother has in her favour that the father did not offer to settle for the terms of the second arbitration award until four months after it was released. Thus rule 18(14) does not click in in respect of the two combined awards until the latest offer was made in January.

[14] Given the number of different proceedings, steps and appearances, along with the complexity and importance of the matters, I think a fair amount that reflects those considerations, proportionality, and the amount the losing party might reasonably be expected to pay is $1333 (including tax) for disbursements and $40,000 plus tax for legal fees.

[15] The mother would have the costs set off against the child support she receives. This can be appropriate in limited circumstances, but not where the mother has managed to pay out over $150,000 to her own lawyers and the father has incurred a like amount of costs out of his pocket. The mother can have 60 days to pay.

[16] Order accordingly.

Perkins J.

Date: June 6, 2014