SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-10-00360434-0001

DATE: 20151120

RE: LARISSA LOUISE EASSON, Applicant

AND:

FRIEDRICH RUDOLPH BLASE, Respondent

BEFORE: McWatt J.

COUNSEL:
Larissa Louise Easson, In Person

Harold Niman and Deborah MacKenzie, for the Respondent

HEARD: April 7, 8, 9, 10, 13, 14, 15; June 10, 11, 12, 15; July 8, 2015

ENDORSEMENT ON COSTS

[1] On September 18, 2015, I dismissed Mr. Blase’s motion to change Justice Klowak’s order of May 14, 2012 on the basis that there was no material change in circumstances. The Order was made on consent of the parties. I found that the father was very unhappy with the agreement he had made to settle the parenting issues regarding his two sons with the mother and was seeking to vary the terms on the basis of change of circumstances, which was really an attempt to appeal the Order.

[2] The trial took twelve days. The mother was unrepresented by counsel, but had been receiving intermittent support (on the basis of a limited retainer) from her previous lawyer, Nicole Tellier. The father was represented by Mr. Harold Niman and Ms. Deborah MacKenzie, along with a legal assistant from their firm.

[3] Ms. Easson seeks costs in the amount of $140,685.87. Mr. Blase’s counsel submits that no costs should be awarded to the mother as she was self-represented, the father made reasonable offers to settle early on and he did achieve some success in obtaining an increase in time with his children.

[4] Section 24(1) of the Family Law Rules, O. Reg. 114/99 apply to this case. The mother is presumptively entitled to full recovery of her costs. I also find that she acted reasonably throughout the process leading to the trial and should not be penalized in the form of reduced amounts for any of the costs she claims for that reason.

[5] First, the mother achieved total success. The father’s claim that he was successful in achieving more time with his children is questionable since it was the mother’s offer, prompted by me at the commencement of the trial, that led to the extra time. I note, however, that the father’s offer of April 6, 2015 contained a request for the extra time, but it also contained demands for the mother to give up her final decision making power and her decision about the location of the school their son, Julian, was to attend. The father failed to achieve either of these demands at trial.

[6] Pursuant to Rule 24(11) of the Family Law Rules, I find the following:

(a) The issues in the trial were important. They dealt with the future parenting of two young boys. Where children’s lives and parents’ involvement in their lives is concerned, the issues are often difficult;

(b) I cannot say that either party in this proceeding acted unreasonably in the context of the issues in this case and in respect of their heartfelt convictions about what was in the best interests of their children;

(c) Both Ms. Tellier’s and Mr. B. Duller’s hourly rates are reasonable in terms of their years in the profession;

(d) The time spent on the matter by the lawyers assisting Ms. Easson was reasonably explained in the Bill of Costs filed by the mother for the determination of the issue of costs. In spite of the father’s claim that Ms. Easson should not get her lawyer’s fees paid because she was claiming to be self-represented, it was clear at trial that the mother would have preferred to have kept Ms. Tellier to represent her, but for the insurmountable expense. She kept the lawyer in the background and used her when she felt it was necessary (as in the attendance of counsel at the questioning of the father and the use of counsel in settlement negotiations and to prepare Offers to Settle). Counsel was also utilized for advice throughout the trial without attending. The mother went to junior lawyers and law clerks in Ms. Tellier’s office to save on costs and she did the work herself when it was feasible to do so.

(e) Ms. Easson’s own rate for the work she did herself is reasonable in light of the fact that she herself is a lawyer and her rate of $225 is equivalent to that of a junior lawyer (Jordan v. Stewart, 2013 ONSC 5037, 2013 CarswellOnt 11295, at para. 99). She represented herself well, identified important issues and the evidence related to the issues. She handled the case more than competently. Ms. Easson also handled the case well in light of the fact that she had to face two experienced lawyers representing the father.

(f) The father made no real complaints about the disbursements to be paid. They were set at $11,371.82.

[7] I can only infer that the father is able to pay the costs. He has not submitted that he cannot nor provided any financial information which might suggest he is unable to pay.

[8] In assessing the quantum of costs, I find that all the work done was necessarily done. The mother is entitled to seek recovery of her costs for all steps taken prior to the trial that were not already the subject of a costs order. She is entitled to recover the costs of preparation of her pleadings and all steps leading up to the trial (S.(C) v. S.(M.), 2007 20279 (ON SC), 2007 CarswellOnt 3485).

[9] Both parties made numerous offers to settle this matter right up to the trial. The mother, however, did far better at trial than any of her offers to settle. The father did not achieve most, if any, of the relief he sought to achieve in his offers to settle.

[10] I am prepared to reduce the amount of costs claimed by $18,900, which represents the mother’s time in court, which she had to attend in any event. I am not prepared, however, to reduce the amount she has claimed as preparation for the twelve days of trial and for preparation of closing arguments. As I have already set out, the rate she has claimed is reasonable and she faced two experienced counsel while doing the preparation herself to counter their claims.

[11] The total costs claimed is just over $140,000. – a small fortune. That this matter would cost one of the litigants that much money is, quite frankly, inconceivable. Assuming the father paid the same or more, since he launched the action, one can only wonder how far the money spent would have gone if spent on the couple’s children.

[12] Although I have found that Ms. Easson’s legal fees, as pared down above, were reasonable in the circumstances, I find the amount of legal fees charged to her by counsel, without providing representation in court, is excessive. I am prepared to order $60,000., including disbursements and HST as payable against the bill of costs filed by the mother.

[13] Therefore, the father shall pay the costs of the proceedings in the amount of $78,675., including disbursements and HST, to the mother, within six months of the date of this endorsement.

McWatt J.

Date: November 20, 2015