CITATION: Childs v. Childs, 2016 ONSC 2092
COURT FILES NO.: CV-15-0416-00 and CV-15-0417-00
DATE: 2016 Apr 05
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-0416-00
BETWEEN:
Michael Childs and Andrew Childs
Applicants
– and –
Peter Childs, Caroline Childs and The Public Guardian and Trustee
Respondents
M. Green, for Michael Childs and Andrew Childs
Peter Childs and Caroline Childs, appearing in person
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
A. Mayeski, for BMO Trust Company
- AND -
COURT FILE NO.: CV-15-0417-00
BETWEEN:
Peter Childs and Caroline Childs
Applicants
– and –
Michael Childs, Andrew Childs, Eileen Vera Childs and The Ontario Public Guardian and Trustee
Respondents
Peter Childs and Caroline Childs, appearing in person
M. Green, for Michael Childs and Andrew Childs
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
A. Mayeski, for BMO Trust Company
HEARD: Submissions in writing
Both court files (CV-15-0416-00 and CV-15-0417-00) heard together
DECISION ON COSTS OF MOTION TO VARY
Tranmer J.
DECISION ON COSTS OF MOTION TO VARY
[1] My decision on this Motion to vary my original decision of June 25, 2015, was released December 16, 2015.
[2] The parties have filed materials that have satisfied me that discussions concerning the costs of that motion have been undertaken in a bona fide manner and that, despite earnest and sincere efforts, resolution could not be achieved.
[3] Such offers and proposals should not be confused with Rule 49 offers required to be made before the hearing began on August 21, 2015 and then October 20, 2015 which trigger costs consequences. The only offers that are possibly of that nature are that of Michael and Andrew dated September 29, 2015 and that of Caroline dated October 2, 2015 which I shall refer to below.
[4] It can be fairly stated that the Motion to vary my original order was necessitated by the actions of Caroline and Peter Childs, who leveraged their mother’s health and best interests to manipulate a result more favorable to Caroline than my original decision of June 25, 2015.
Public Guarian and Trustee Counsel
[5] I am advised that the parties consent to the payment of costs to the Public Guardian and Trustee counsel in the sum of $1500 inclusive of HST to be paid forthwith out of the estate of Eileen Childs. I so order.
Section 3 Counsel
[6] I have considered the materials filed by section 3 counsel and the submissions by the other parties concerning the costs claimed by section 3 counsel.
[7] Counsel accepted the retainer and is to be commended for continuing to act on her retainer in the face of the difficulties caused and the criticisms directed at her by Caroline and Peter Childs.
[8] I have considered the factors set out in Rule 57 and as well the case law that has been cited to me.
[9] I accept the number of hours invested by counsel on this matter. I note that senior counsel has reduced her hourly fee from $420 to $390 and that that is $40 more than the guidelines set out in Rule 57 for partial indemnity costs. I note also that she has included a claim for costs incurred by her law office assistant.
[10] Of particular significance in this case is the importance of the outcome to Eileen Childs. As I have said previously, it was important that her best interests be represented by a qualified, independent, and objective legal counsel. Section 3 counsel discharged her professional responsibility to the necessary high standards in this regard.
[11] It can also be said that the conduct of Caroline and Peter Childs tended to lengthen and delay unnecessarily the duration of these proceedings. Such conduct includes failure to approve orders in a timely manner, leveling unfounded criticism of section 3 counsel and BMO in the course of the proceedings, attempting to resile from an informed consent made with counsel’s representation early in these proceedings and, although the scope of the variation hearing was narrow, they attempted to relitigate all issues that were before the court prior to and on June 18, 2015. Such conduct increased costs to all involved.
[12] As in Fiacco v. Lombardi, [2009] O.J. No. 3670, the representation by s. 3 counsel benefited Eileen Childs and was helpful to the court in dealing with the issues.
[13] I accept the principles set out in Scalia v. Scalia, 2015 ONCA 492, paras. 71 to 73, and I note that that decision resulted in an award of costs on a substantial indemnity basis.
[14] I find the decision in Christian Brothers of Ireland in Canada, (Re), 2003 CarswellOnt 4447 to be distinguishable in that the same financial risk, para. 24, was not present in the Childs case. Eileen Childs’ estate is significant and well able to afford s. 3 representation. This is not a case where counsel risked a result of no payment whatsoever, which is a risk in such cases as an all or nothing motor vehicle collision proceeding. As I have indicated s. 3 counsel accepted the retainer and conducted herself as a responsible professional legal representative, consistent with her duties as an officer of the court, and as a Certified Specialist in Estates and Trusts. She endured criticism and difficulties dealing with opposing parties, but that is often a part of the lawyer’s retainer.
[15] I note that she has not charged for a significant amount of her time.
[16] I accept the principles set out in DeMichino v. DeMichino, 2012 ONCA 458, in particular, para. 21 and 25, as well as in Abbott v. Reuter-Stokes Canada Ltd., 1988 CarswellOnt 520.
[17] Accordingly, my decision is that a fit and just costs order, bearing in mind the principles from Boucher v. Public Accountants Council (Ontario) (2004) 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (CA) principles, and observing that the parties have been informed about the possible costs consequences including quantum throughout these proceedings, to s. 3 counsel is in the actual amount claimed, namely $102,641.29 inclusive of HST, together with disbursements fixed in the sum of $1238.35.
[18] This is not a case where a premium costs award is appropriate, in my view. Counsel can take solace in the fact that she was paid fairly for her work. She did her job well and to the benefit of Eileen Childs and persevered under most difficult circumstances.
[19] The costs payable to s. 3 counsel, together with the costs of $16,770 ordered in my decision of September 18, 2015 payable by Caroline and Peter Childs to s. 3 counsel shall be paid forthwith out of the estate of Eileen Childs. Fifty per cent (50%) of the total sum shall be set off, with post judgment interest at the Courts of Justice Act rates, against the inheritance to be and when received by Caroline and Peter Childs from the estate of Eileen Childs. This reflects the principles that the estate should not routinely bear the costs of such litigation and that it is appropriate to sanction to some extent the litigation conduct of Caroline and Peter Childs.
BMO
[20] I agree with the submissions of counsel for BMO in her characterization of the conduct of Caroline and Peter Childs in this litigation, in particular, at paragraphs 1 and 5 of her submission.
[21] No mention is made of a Rule 49 offer by BMO.
[22] Counsel claims full indemnity costs on behalf of her client.
[23] I am not prepared to go so far as characterizing the conduct of Caroline and Peter Childs in this litigation as “reprehensible, scandalous or outrageous.”
[24] But I am prepared to address such conduct by way of a substantial indemnity costs award in favour of BMO payable forthwith out of the estate of Eileen Childs, fifty per cent (50%) of which is to be offset against the inheritance of Caroline and Peter Childs from their mother.
[25] It is my opinion that the hours claimed by counsel are somewhat high and I reduce those from 115.4 to 100 hours. Reducing the actual hourly rate claimed by 80% to reflect a substantial indemnity rate of $280 per hour, results in a fees award to counsel for BMO in the amount of $28,000. To this shall be added the sum of $1459.20 as fees for her paralegal. This total of $29,459.20 shall be further reduced for the reasons indicated by counsel by the sum of $3000 for a total fees award of $26,459.20, to which shall be added the applicable HST.
Michael and Andrew Childs
[26] These parties made an offer on September 29, 2015. It is very close to the final outcome. On the guardian of care issue, it is more favourable to Caroline than my decision.
[27] Counsel had two clients, although it appears that Michael took the lead role. The hours claimed by counsel are somewhat higher than was the case for s. 3 or BMO counsel, but are not excessive. The two lawyers that represented these parties are senior and their hourly rates as claimed in this case are fair.
[28] I find that a fit and just costs award to Michael and Andrew is on the partial indemnity scale in the sum claimed of $62,267.40, together with the disbursements and HST as claimed for a total cost award of $72,614.98.
[29] For the reasons that I have stated previously in this decision, I find that it is fit and just that 50% of this sum shall be payable forthwith out of the estate of Eileen Childs and offset against the inheritance from that estate by Caroline and Peter Childs. The balance shall be borne by Michael and Andrew on their own.
Caroline Childs
[30] I observe that Ms. Childs made an offer dated October 2, 2015 that was close to the final outcome.
[31] As I have stated, the offers made subsequent to my decision are not relevant to this costs decision.
[32] Ms. Childs submits that each sibling shall bear his or her own costs.
[33] Ms. Childs has submitted an account from legal counsel, commencing July 26 up to January 4, 2016 showing a total payable of $34,525 plus disbursements of $4058.52 and HST of $4269.59.
[34] Also attached is a curious letter dated January 29, 2016 from counsel, who previously represented Caroline and Peter Childs, which reads, “Please note that I have not been retained with respect to this matter… Attached please find the cost submissions of Caroline Childs.”
[35] In the circumstances of this case, it is my opinion that Caroline Childs should bear her own legal costs. The comments made in my decision of December 16, 2015 and earlier in this costs decision set out the basis for my decision in this regard.
Peter Childs
[36] In his costs submissions, he continues to complain about BMO.
[37] It is his submission that all of the children should bear their own costs and that the costs of the other party should be borne by the estate.
[38] For the reasons that I have given in my decision of December 16, 2015, and in these reasons, it is my view that Peter Childs should bear his own legal costs.
Honourable Mr. Justice Gary W. Tranmer
Released: April 05, 2016
CITATION: Childs v. Childs, 2016 ONSC 2092
COURT FILES NO.: CV-15-0416-00 and CV-15-0417-00
DATE: 2016 Apr 05
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
decision on costs of motion to vary
Tranmer J.
Released: April 05, 2016