ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILES NO.: 14-62156 and 15-63109
DATE: 2015 Sept 17
ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE NO.: 14-62156
BETWEEN:
Michael Childs and Andrew Childs
Applicants
– and –
Peter Childs, Caroline Childs and The Public Guardian and Trustee
Respondents
J. Johnson, for Michael Childs and Andrew Childs
M. Vale Peters, for Peter Childs and Caroline Childs
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
R. Coutinho, for The Public Guardian and Trustee
- AND -
OTTAWA COURT FILE NO.: 15-63109
BETWEEN:
Peter Childs and Caroline Childs
Applicants
– and –
Michael Childs, Andrew Childs, Eileen Vera Childs and The Ontario Public Guardian and Trustee
Respondents
M. Vale Peters, for Peter Childs and Caroline Childs
J. Johnson, for Michael Childs and Andrew Childs
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
R. Coutinho, for The Ontario Public Guardian and Trustee
HEARD: June 18, 2015 at Ottawa
Both court files (14-62156 and 15-63109) heard together
Tranmer, J.
COSTS OF APPLICATIONS UNDER SUBSTITUTE DECISIONS ACT AND DECISION OF JUNE 25, 2015
[1] At the outset of this costs decision, I wish to make it clear that the decision is based solely on the proceedings before me up to and including June 18, 2015, and my decision of June 25, 2015. Although I am aware of subsequent litigation following that decision, that further litigation and proceedings play no role whatsoever in this costs decision. I have given no consideration whatsoever in this costs decision to that subsequent litigation.
[2] This litigation involves two pairs of siblings pitted against each other in a dispute involving their elderly mother, Eileen Childs, and the care of her property and of her personal care.
[3] At the time that the matter came on for hearing before me on June 18, 2015, all of the issues except for one had been resolved, except for some concerns on the part of Michael and Andrew Childs concerning their mother’s dizziness at home. As I identified in my decision of June 25, 2015, the substantive issue before me was, “whether Caroline Childs is entitled to compensation for the care that she provided to her mother in her Sand Lake home from January 25, 2011 to October 30, 2013, and since the order of Justice McLean and going forward from this point in time, and if so, the quantum of such compensation.”
[4] There is no issue with respect to costs that the costs of the Public Guardian and Trustee should be paid out of the property of Eileen Childs and I so order.
s. 3 COUNSEL COSTS
[5] It was necessary that counsel be appointed under s. 3 of the SDA. She provided a voice for Eileen Childs and independent and reasoned submissions that were of assistance to the court. Counsel has been called to the Bar for 20 years and charged an hourly rate of $390 per hour in this case. She is well qualified. She spent 137.9 hours in preparation for and attendance at the hearing. She also incurred some legal assistant time and costs.
[6] Her costs total $55,351.
[7] Michael and Andrew Childs consent that her costs be paid out of the property of Eileen Childs.
[8] Peter and Caroline Childs submit that her costs are excessive and should be reduced by 75% and allege misconduct on the part of counsel.
COSTS OF MICHAEL AND ANDREW CHILDS
[9] Counsel for Michael and Andrew Childs has been called to the Bar for in excess of 31 years. He incurred 89.6 hours on behalf of his clients, together with some student time. Counsel billed this file at the rate of $425 per hour actual, $340 per hour substantial indemnity and $255 per hour partial indemnity. His costs total in regard to fees at actual rate, $55,906.50, at substantial indemnity rate, $44,725.20 and at partial indemnity rate, $33,543.90.
[10] Michael and Andrew submit that they should be reimbursed by Peter and Caroline on a substantial indemnity basis, the latter having been unsuccessful in this litigation, or in the alternative that each party bear their own costs.
COSTS OF PETER AND CAROLINE CHILDS
[11] Counsel was called to the bar in 2004. She charged these clients at the rate of $300 per hour. This is the only rate claimed in the Bill of Costs for counsel and it is not identified as an actual rate, or a substantial indemnity rate, or a partial indemnity rate. Counsel incurred 105.2 hours plus student and clerk time on this file. The costs total $37,460.
[12] Peter and Caroline claim substantial indemnity costs from Michael and Andrew.
ANALYSIS
[13] The costs of this litigation to this point are extremely high, which is contrary to the best interests of Eileen Childs, should she have to fund some of these costs and further, because it highlights the magnitude of the dispute between her children.
[14] I find no basis whatsoever to reduce the costs of s. 3 counsel. Her work was necessary. I was helpful to the court as being independent and reasoned. The hourly rate claimed is within the parameters set out in the Rules. While the hours spent by counsel are high, there is no basis on the record to find that those hours were not necessarily spent on behalf of Eileen Childs.
[15] Settlement between litigating parties is to be encouraged and supported by the court and no party should suffer a penalty when a settlement is reached. To the extent that a settlement was achieved in this case prior to the hearing, Michael and Andrew Childs on the one hand, and Peter and Caroline Childs on the other, should each bear their own costs up to the point that preparation for and attendance on the hearing before me was necessary. I so order.
[16] With respect to the costs of s. 3 counsel up to the point that preparation for and attendance on the hearing was necessary, it is my view that those costs should be borne by the property of Eileen Childs. I am mindful of the decision of Justice Brown in Fiacco v. Lombardi 2009 46170 (SCJ). The resolution of the issues and peace between the litigating parties, her children, was in the best interests of Eileen Childs and an outcome dearly hoped for by her. It was to her advantage and in her best interests that she had a counsel to represent her interests.
[17] I find that with respect to the costs of preparing for and attending on the hearing, s. 3 counsel’s costs from June 9, 2015 are $16,770 (43 hours), for Michael and Andrew's counsel’s costs at substantial indemnity rate $340/hour are $4522 (13.3 hours) and Peter and Caroline's costs are $23,430 (78.1 hours).
[18] On the issue before me that was fought through to adjudication, Peter and Caroline Childs were the unsuccessful parties. Although there was no Rule 49 offer in play, they had the opportunity to resolve their claim for compensation much earlier in the litigation and in an amount far more favourable to them than I awarded in my Decision. They were offered compensation that was much closer to their claim and rejected it, and indeed, they also rejected offers very close to what was ultimately awarded.
[19] Bearing in mind all of the circumstances of the litigation that were before me on the hearing, together with the factors set out in Rule 57, and the result, I find that a fair and reasonable costs award in this case is that Peter and Caroline Childs pay the costs of section 3 counsel incurred for the preparation and attendance on the Hearing before me in the sum of $16,770 and the costs of Michael and Andrew Childs for the preparation and attendance on the Hearing before me in the sum of $4522, and that they bear their own costs of same. It was Peter and Caroline Childs’ decision to litigate the money issue, in the face of Counsel’s representation that Caroline was not motivated by compensation and would, in the future, care for her mother and act as guardian of personal care whether reimbursed or not. I also note that no evidence was adduced that doing so caused a financial loss or hardship to Caroline or some other cost or hardship.
[20] On the record before me, the quantum of costs incurred and awarded in this decision were within the reasonable expectation of the parties. Section 3 counsel kept the parties informed as to her ever increasing costs, and the parties, no doubt, were kept informed by their own counsel as to their own ever increasing costs.
[21] This costs decision is consistent with the principles set out in Fiacco and in particular as set out in paragraphs 32 through 37, inclusive of that decision.
DECISION
[22] To summarize, I order that,
Costs of the Public Guardian and Trustee are to be paid out of the property of Eileen Childs;
Peter and Caroline Childs shall pay the costs of s. 3 counsel in the amount of $16,770 and the costs of Michael and Andrew Childs in the amount of $4522;
The balance of the costs claimed by s. 3 counsel shall be paid out of the property of Eileen Childs; and
The remaining costs of Peter and Caroline Childs shall be borne by them and the remaining costs of Michael and Andrew Childs shall be borne by them.
Honourable Mr. Justice Gary W. Tranmer
Released: September 17, 2015
OTTAWA COURT FILES NO.: 14-62156 and 15-63109
DATE: 2015 Sep 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Childs and Andrew Childs
Applicants
– and –
Peter Childs, Caroline Childs and The Public Guardian and Trustee
Respondents
–AND–
Peter Childs and Caroline Childs
Applicants
– and –
Michael Childs, Andrew Childs, Eileen Vera Childs and The Ontario Public Guardian and Trustee
Respondents
COSTS OF APPLICATIONS UNDER SUBSTITUTE DECISIONS ACT AND DECISION OF JUNE 25, 2015
Tranmer J.
Released: September 17, 2015