Court File and Parties

Court File No.: CV-17-00582741-000 Date: 2025-09-22 Ontario Superior Court of Justice

Between: Friedrich Blase, Plaintiff – and – Niman Gelgoot and Associates LLP, Harold Niman and Deborah MacKenzie, Defendants

Counsel: Jason Beitchman and Fabian Suárez-Amaya, for the Plaintiff Sean Dewart and Adrienne Lei, for the Defendants

Heard: April 8, 9, 10, 11, 14, 15, 16, 17 and 23, 2025

Reasons for Judgment

John Callaghan J.

Overview

[1] Friedrich Blase and his ex-wife were involved in an ongoing dispute, principally regarding Mr. Blase's parenting time with their two boys. He sought the assistance of Harold Niman and Deborah MacKenzie at the law firm of Niman Gelgoot and Associates LLP (the "Firm"). With the advice and assistance of the defendants, Blase brought a "motion to change" an existing consent order issued by Justice Klowak (the "Order"), which addressed the parenting arrangement, because he sought more access to his two boys.

[2] His motion to change was largely predicated on the basis that his circumstances had changed because he had taken a new job that meant he would travel less and, therefore, be more available to parent. That proceeding resulted in a judgment of Justice McWatt (now Associate Chief Justice), which was not favourable to Mr. Blase. Her Honour rejected the contention that there was a material change in circumstances. Her Honour made several comments critical of Mr. Blase's conduct toward his former spouse and her lawyer. He describes the decision as "catastrophic" and "humiliating".

[3] In this action, Mr. Blase sues the defendants for professional negligence and alleges they breached their duties as his counsel. He argues that he would not have brought the proceeding before Justice McWatt but for the negligence of the defendants. He says that the decision was avoidable had the defendants not been negligent. He seeks damages including his fees to the Firm, an adverse costs award, the fees for an unsuccessful appeal, and the cost of a second motion to change.

[4] It is asserted that the defendants i) failed to investigate and evaluate the facts of the case, ii) failed to warn Blase about the strengths and weaknesses of his case and iii) failed to ensure the advice given to him was understood by him.

[5] I do not find that the defendants were negligent. I am satisfied that Mr. Blase was aware of the risks attended with the proceeding and knowingly undertook those risks. I have concluded the defendants were neither the cause of the loss of the proceeding before Justice McWatt nor responsible for the humiliation as a result of the decision. I dismiss this action for the reasons that follow.

Background Facts

[6] Mr. Blase and Ms. Easson married in Germany on October 6, 2003. The couple moved to Canada in July 2005 with their son Nikolas. They separated in May 2009. Their second son, Julian, was born later that year. They divorced in 2011.

[7] Mr. Blase is a German trained lawyer with a PhD in law. Ms. Easson is a Canadian lawyer.

[8] Mr. Blase worked for the New York law firm Holland & Knight as a consultant dealing with the firm's international clients and offices. He worked out of the New York office. He resided in New York but later moved to Toronto, where he bought a home. He travelled extensively to the law firm's various international offices.

[9] Ms. Easson lived in Toronto and was a counsel with at the Ministry of the Attorney General in Toronto.

[10] After the divorce, the parenting arrangements for their two young boys remained an issue and was the subject of litigation. In that proceeding, Mr. Blase was represented by Ms. Jacqueline Mills. Ms. Easson was represented by Ms. Nicole Tellier. That proceeding was resolved on consent and resulted in the Order.

The Order

[11] The Order was issued on May 14, 2012. The Order spans 62 paragraphs. The Order provided for Nikolas to be in the care of his father on alternate weekends commencing after school on Thursday and to be returned to his mother on Sunday at 6 p.m. Julian, who was still being breastfed, was to be with his father on alternate weekends starting Friday at 9 a.m. and was to be returned to his mother along with Nikolas on Sunday at 6 p.m. The schedule specifically provided, "Julian shall not be with the father more than two overnights at a time, at this time, except during holidays and other special occasions, when he shall be with the father for three overnights at a time." The Order also set out a schedule for equal holiday time and the summer schedule for the first year.

[12] The Order provided for open mediation with Dr. Butkowsky. The parties could seek Dr. Butkowsky's advice regarding "the extension of time for Julian in his father's care and consideration to an extension of time with Nikolas and to assist in determining the sharing of holidays, if necessary". However, the Order expressly provided that Dr. Butkowsky was "not mandated to mediate or consider a new parenting regime, which can only be determined in the event of a material change in circumstances, by a court of competent jurisdiction." If requested by either parent, Dr. Butkowsky could prepare a written summary of the mediation and any recommendations. In short, on the residential schedule there could be no change without the consent of Ms. Easson.

[13] The Order had a host of other provisions, some of which dealt with the conduct of the parents towards each other, including how they spoke about the other in the presence of their children. The parents had difficulty getting along. As found by Justice McWatt, "[t]his couple dislike each other so much that they are usually unable to communicate or come to decisions related to their sons without difficulty and sometimes without the assistance of a third party." In short, the Order mandated civility and co-operation.

[14] The Order dealt with child support. It did so by imputing an income to the father of $150,000. Child support was to be reviewed in July 2016.

[15] The Order dealt with "Section 7 Expenses", which are expenses above regular child support and are considered extraordinary. This included the boys' soccer, summer camp and non-insured health care cost. The Order also provided that the mother may retain a nanny and for the parents to divide that cost. If the mother increased the nanny's salary, the father was to pay half.

[16] Mr. Blase reviewed the Order with Ms. Mills before agreeing to it. Notwithstanding his agreement to the Order, the Order almost immediately became a matter of some contention for Mr. Blase.

Post-Issuance of the Order

[17] After the Order was issued, Mr. Blase planned to work out of Holland & Knight's Toronto office. Holland & Knight had agreed to this change, but if he worked out of the Toronto office rather than New York, he would be paid a reduced salary. As a result, after the Order was issued, he elected to work out of the New York office so as to make the increased income. In either location, his job with Holland & Knight would continue to involve significant international travel.

[18] In June 2012, less than a month after the Order was issued, Mr. Blase dismissed Ms. Mills and retained the Firm. Mr. Blase was unhappy with the Order, and he believed that there would be ongoing disputes with Ms. Easson.

[19] Mr. Niman is the senior partner of the Firm. He is a senior member of the family law bar and is recognized as such by his peers.

[20] Mr. Blase met with Mr. Niman on June 29, 2012. On that date, Mr. Blase signed a retainer agreement with the Firm. He read the retainer and made some specific modifications to it. The retainer provided, in all-caps, that:

I ACKNOWLEDGE THAT I HAVE BEEN ADVISED THAT COURT PROCEEDINGS ARE EXPENSIVE AND UNCERTAIN AND THAT IN SPITE OF MY SOLICITOR'S EFFORTS ON MY BEHALF, THERE IS NO ASSURANCE OR GUARANTEE, OF THE OUTCOME, THE LENGTH OF TIME IT MAY TAKE, OR THE COSTS INVOLVED.

[21] As Mr. Blase was a lawyer and someone who interacted with Holland & Knight's clients, he described the above acknowledgement as self-evident. He understood there are no guarantees in litigation, as to both the result and costs.

[22] Initially, Mr. Blase's principal issue of concern was the limited time he had with Julian. The breastfeeding meant Julian was not allowed to be away from his mother for more than 3 days in a row. This meant Mr. Blase could not take Julian to Germany to see his family. Any family trips beyond a couple of days meant that only Nikolas could go and not Julian. This was distressing to Mr. Blase as he felt that the family was needlessly separated. Mr. Niman felt that Mr. Blase's parenting time with his children was much less than what might otherwise be expected given there was no parenting issues with Mr. Blase.

[23] At this first meeting, Mr. Blase raised the fact that there was a mediation process, but that Dr. Butkowsky had no decision-making power. For Mr. Niman, this raised "red flags" as without the power of a neutral party to decide on adjustments to the parenting relationship, Mr. Niman felt it was much less likely Ms. Easson would agree to any change to the parenting relationship. There was discussion about communications with the mother and her counsel. Mr. Blase was cautioned by Mr. Niman that these communications could well end up in court as evidence. At the meeting, Mr. Blase also advised that his yearly salary would likely be in the range $480,000, much higher than the $150,000 that the support payments in the Order were based upon.

[24] At this stage, Mr. Niman assigned the file to Sandra Jackson, an associate at the Firm. Over the following months, Ms. Jackson addressed several ongoing issues, including assisting in establishing a summer schedule. In this proceeding, there is no issue taken with the work performed by Ms. Jackson.

[25] As already noted, Mr. Blase had difficulty addressing Ms. Easson in a civil manner. Ms. Jackson was required to caution him as to how he addressed Ms. Easson. She specifically told him not to send emails describing Ms. Easson as "lying" about an issue regarding the children. She advised him to avoid such language and use less harsh terms such as "untrue". Further warnings were given by others, including Mr. Niman, that Mr. Blase ought to be careful with his comments to Ms. Easson as those comments would be used against him at trial. He would nonetheless make inappropriate comments not just to Ms. Easson but also to her lawyer. Mr. Blase was aware that such comments were contrary to the Order. He acknowledged in this trial that his comments at times were inappropriate.

[26] In one exchange, Mr. Blase, after agreeing to settle an interim matter, told Ms. Jackson he "need[ed] to drag [Ms. Easson] to court and hand her a sound defeat", irrespective of how immaterial the issue to do so might be, to show her that her reading of the Order was "one-sided and crap". This desire to hand Ms. Easson a sound defeat continued throughout.

[27] In October 2013, Mr. Blase anticipated that his work situation might soon change. While Mr. Blase was not in a traditional legal role like other lawyers at Holland & Knight, he nonetheless asked to be considered for partnership. If he was not accepted into the partnership, he anticipated leaving the firm. If that occurred, he anticipated that his travel schedule would lighten substantially, resulting in him being more accessible to the boys. It was Mr. Niman's view that a change in his travel schedule, along with the boys growing older, might be sufficiently material to support a motion to change the parenting arrangement in the Order.

[28] Mr. Blase and Mr. Niman met again in mid-December 2013. By this time, Mr. Blase was aware that he would not be considered for partnership at Holland & Knight. He advised he would be terminating his employment with Holland & Knight in March 2014. In addition, Mr. Blase was in a committed long-term relationship with his future wife, who had bonded with the children. Mr. Niman felt this, too, would add to the material change of circumstances that might warrant a change to the Order.

[29] In the absence of Ms. Easson's consent and to achieve a change to the parenting plan, Mr. Blase needed a judicial determination. Prior to investing in a motion to change, Mr. Niman recommended that Mr. Blase propose to Ms. Easson that Dr. Butkowsky conduct a mediation and arbitration regarding a new parenting plan. Although not consistent with the Order, if agreed upon, it would be a cost-effective way to address the parenting issue. If not agreed upon, it would demonstrate a willingness of Mr. Blase to be reasonable, which would provide support to any motion to change.

[30] Ms. Easson declined the offer. As Ms. Easson rejected the mediation and arbitration offer, Mr. Niman's staff began preparing the necessary motion materials.

Motion to Change

[31] A parent applying for a change in an access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. To meet this threshold, the judge must be satisfied of three factors: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child, (2) that this change materially affects the child, and (3) that it was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. Once this threshold has been established, the court must then "decide what custody arrangement now accords with the best interests of the child": Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 13-17.

[32] As noted, the principal material change in circumstances was Mr. Blase's change in employment. After leaving Holland & Knight, Mr. Blase took a job with Thomson Reuters in Toronto, where he could work from home and had no regular travel commitments and, thus, would be more available for the boys. In his affidavit of January 12, 2015, Mr. Blase swore as follows:

There has been a material change in my living and work circumstances since May 2012. While employed by Holland & Knight in 2012 I worked out of the firm's offices in New York and Miami and spent considerable time travelling to the firm's other offices to satisfy my job description. This was reflected in the access and residence schedule in the Order of Justice Klowak.

My employment terms with Holland & Knight were varied from January 1, 2014 on the clear understanding that I would only be residing in Toronto and I would only be available for work in the US and other locations as my schedule with my children permitted. I have resided permanently in Toronto since January 2014.

I left my role at Holland & Knight after the closure of their office in Abu Dhabi, which I co-ordinated for the firm. The office closed on September 3, 2014 and I left my employment with Holland & Knight on September 30, 2014.

I have worked extremely hard to secure my current role at Thomson Reuters, so I could work from home and take care of my children. I commenced this position in November 2014. This position provides me with the perfect opportunity to have more access to the children on an alternate weekly basis. I attach as Exhibit "E" a true copy of a letter from my manager dated December 16, 2014 that clearly evidences that I primarily work from home and that there is no regular travel mandated by my job.

[33] The attached letter from his new employer affirmed Mr. Blase would primarily work from home and would typically not be required to travel because of his family situation. It reads in part:

The company also has no expectation as to his availability to travel to New York or other locations. In hiring him, we were mindful of his desire to spend considerable time In Toronto so as to be with his wife and children as much as possible. In fact, this was part of our discussions during the hiring process. Given his family situation, we are aware that he will typically not be able to travel while the children reside with him and accept this as a fact of his employment.

[34] The motion material also included evidence of his relationship with his new wife, his relationship with his children, and the difficulty of working with the Order given Ms. Easson's lack of flexibility. It also included affidavits from friends attesting to his relationship with the children.

[35] As stated by Tom Dart, an experienced family law lawyer and the defendants' expert in this proceeding, the preparation of the material for a motion to change access is an iterative process. In this case, the initial motion material was prepared in May, was added to on several occasions, and, in the end, there was viva voce evidence at a trial.

[36] The judicial process included an attendance before a Dispute Resolution Officer ("DRO") in June. The DRO is a senior lawyer who seeks to resolve these types of disputes. Ms. MacKenzie was brought into the file at this stage. She is a very experienced family law lawyer who is now retired. She attended with Mr. Blase before the DRO. The request for a new parenting plan was not resolved at that time. However, with the help of the DRO, a summer schedule for 2014 was resolved. As for the motion to change, it was scheduled for November but was later adjourned to December.

[37] Ms. Easson brought a countermotion, which resulted in further material being filed. It became apparent that the motion would need to be converted into a trial as there were too many credibility issues for a determination on a motion. I accept Mr. Dart's evidence that it is common in these types of cases that a motion to change will be converted to a trial, and Mr. Niman was reasonable in assuming that this would be the case.

[38] The parties attended before Justice Stevenson on December 18, 2014. As anticipated, she converted the motion to a trial to be heard in April. Her Honour ordered there to be questioning of the two parties prior to trial.

Offers to Settle

[39] Beginning in early March 2015 through to the start of trial, the parties exchanged several settlement offers. In successive offers, Ms. Easson proposed that Mr. Blase's access would increase over time, ultimately resulting in a 50/50 split. There were counteroffers by Mr. Blase. As will be discussed later, the offers became more complicated as the parties, particularly Mr. Blase, wanted amendments to other parts of the Order, not just the parenting regime.

[40] Mr. Niman and Ms. MacKenzie strongly urged Mr. Blase to accept Ms. Easson's offer. For instance, on March 27, 2015, Ms. MacKenzie forwarded Ms. Easson's most recent offer, stating the offer, with a few tweaks, "contains everything that [Mr. Blase] want[ed] to achieve". She reminded him that there was no guarantee of success at trial.

[41] Mr. Blase dug in and would not agree to any offer that did not include his requested changes, which now encompassed changes to other elements of the Order. He wanted Ms. Easson to be told by Ms. MacKenzie that she had "as much to lose, including a cost verdict of $100,000."

[42] As it often happens prior to trials, more offers were exchanged. On April 5, 2015, Ms. MacKenzie once again wrote Mr. Blase, recommending he accept Ms. Easson's latest offer as it provided the access to the boys that he requested. She stated, "I think you risk throwing away what you have always said is what you want, if you do not settle tomorrow." Unfortunately, Mr. Blase now sought wholesale revisions to the Order.

[43] Mr. Blase did not take the advice well. He wanted more than time with his children and a reconsideration of both the financial and decision-making arrangements. He wrote to Ms. MacKenzie, "[The offer], while giving me the extra time, has massively negative financial consequences and practically no improvement on the decision-making - if anything it is worse." He lashed out at Ms. MacKenzie saying the following: "I am having to battle with my lawyers who suddenly - at the very last minute - jump away from supporting my case as opposed to having them in my corner fully prepared as this comes to its end. I know there is a risk. I am not dumb or blind. But I don't need you to keep scaring me when we need to be confident now." He then reiterated his unwillingness to accept: "The only settlement discussion we can have with [Ms. Easson] is based on MY offer last week and she can add what she thinks she really needs". He ended the email saying, "I am willing to drop my cost recovery if we manage to settle this today."

[44] Mr. Niman, who was copied on the email, responded saying the email was inappropriate and sounded much like the way Mr. Blase talked to his previous lawyer. Mr. Niman reiterated that Mr. Blase should settle for the reasons explained to him by Ms. MacKenzie, but it was ultimately his decision. Mr. Niman concluded, "Sometimes clients become so invested in positions they lose sight of the bigger picture. I am afraid that is what is happening here."

[45] No settlement was reached.

The Hearing

[46] The trial proceeded before Justice McWatt for 12 days between April and July 2015.

[47] Mr. Blase, Ms. Easson, and Dr. Butkowsky testified. No transcripts of that trial were filed in this proceeding. As such, this court does not know exactly what transpired before Justice McWatt.

[48] Justice McWatt dismissed the request for a change to the parenting regime: Easson v. Blase, 2015 ONSC 5170, 68 R.F.L. (7th) 436. She concluded that there was no material change warranting a change to the Order. This was based on the testimony that his new job also required travel. At para. 62, she found:

Second, in September, 2014, the father took on new positions as "Director, Legal Solutions" at Thompson Reuters and "Global Director" at Pangea 3, a legal outsourcing business with a client base in Canada and Europe. He provided a letter from Joe Borstein dated December 16, 2014 setting out that although Mr. Blase had travelled for his employment with the company, there are no expectations of him to travel in the future. T he father testified at the trial that this job does, however, require international travel . (emphasis added)

[49] While I do not have the benefit of the trial transcripts, it would appear Mr. Blase's trial testimony contradicted his affidavit and the supporting letter from Thompson Reuters. The decision refers to his job requiring "international travel" whereas the employer's letter said there was no expectation that he would travel to New York or other locations. It also is at odds with Mr. Blase's affidavit wherein he swore, "[T]here is no regular travel mandated by my job."

[50] Her Honour went on to state that while Mr. Blase and Ms. Easson were in a "toxic" and "unstable" relationship, Ms. Easson was merely adhering to the Order. She was highly critical about Mr. Blase's attitude toward Ms. Easson, including his conduct at the trial. In that regard, Her Honour stated, at para. 27:

It became clear to me during the trial that Mr. Blase still holds unbridled hostility towards Ms. Easson. Throughout, he glared at her whenever she spoke in a way that communicated his utter disrespect and loathing for her until she asked me to intervene while she was on the witness stand. That is when she was able to see his expressions. I had seen them throughout the motion when the mother addressed the court. It was only after I did intervene that he held his feelings for her in check.

[51] When discussing the best interest of the children, she again commented on Mr. Blase's hostile dealings with Ms. Easson. Her Honour, at para. 88, noted that Mr. Blase described Ms. Easson as controlling and "passive aggressive". She found that Mr. Blase showed disrespect towards her. Her Honour pointed to the fact that he called Ms. Easson's lawyer a "f-cking c-nt" at the questioning done before trial. Her Honour noted, "He justifies his behavior as the appropriate response to the mother's unreasonable behavior. His position is unjustifiable." While Mr. Blase appeared contrite before this court regarding his behavior toward Ms. Easson and her lawyer, it would appear that he did not do so before Justice McWatt.

[52] In addressing the best interest of the children, Her Honour found that the current arrangements were serving the children's best interest.

[53] During the trial, Justice McWatt suggested that Ms. Easson consider granting Mr. Blase more time with the boys. Ms. Easson did so and agreed to change the residential schedule by having the boys stay with Mr. Blase on alternate Wednesdays through Monday mornings until the children go to school. This was significantly less than the time contemplated in the offers made by Ms. Easson and rejected by Mr. Blase.

[54] Justice McWatt dismissed the remainder of the motion to change the Order. She ordered Mr. Blase to pay $78,675 in costs, most of which was for Ms. Easson's own work on the file.

Post-Decision

[55] Mr. Blase was disappointed with the result. He, along with his wife, met with Mr. Niman and Ms. MacKenzie to discuss his options. Unbeknownst to the lawyers, the conversation was surreptitiously being recorded.

[56] While Mr. Niman did not agree with all aspects of the decision, he told Mr. Blase that he did not expect an appeal court to reverse the decision. Contrary to Mr. Blase's view, Mr. Niman was clear that he was not recommending an appeal but would undertake an appeal if requested.

[57] Mr. Blase consulted two other lawyers about an appeal. He consulted Stephen Grant, a preeminent family law lawyer. He was told by Mr. Grant there were arguments to be pursued on an appeal but that an appeal would be an "uphill climb". Mr. Blase appealed.

[58] The appeal was unsuccessful. The Court of Appeal described the appeal as arising "out of a high-conflict dispute between parents regarding the residential schedule and parenting of their two children, now 12 and 7 years old." The court quoted Justice McWatt that the father "holds unbridled hostility towards" the mother: Easson v. Blase, 2016 ONCA 604, 84 R.F.L. (7th) 311, at paras. 1 and 4.

[59] On September 29, 2016, the Court of Appeal issued its order on costs, being the last step in the appeal. The very next day, Mr. Blase brought a new motion to change the Order. This time, Mr. Blase acted for himself, as did Ms. Easson. He again asked for equal parenting time and a host of additional changes to the Order.

[60] In response, Ms. Easson brought a motion to strike Mr. Blase's motion and to have Mr. Blase declared a vexatious litigator. Ms. Easson's motion was based, in part, on Mr. Blase's refusal to pay the costs order of Justice McWatt, which was upheld by the Court of Appeal. It was only on the return of the motion before Justice Mesbur that Mr. Blase showed up with a cheque for the costs award of the prior proceedings: Easson v. Blase, 2017 ONSC 2982. Her Honour, at para. 25, described the scene as follows:

When father began his argument in response to the motion to strike, I asked him to explain his default. He suddenly reached into his pocket and pulled out what he described as a certified cheque for the "full" amount of the trial costs of $78,675, but without accrued interest. With somewhat of a flourish and a smirk he passed the cheque across the courtroom to mother's counsel. I have no idea whether he would have delivered the cheque had I not raised the issue.

[61] Justice Mesbur observed that Mr. Blase's "behaviour in delivering a cheque for costs in the middle of argument can only be viewed as either grandstanding or insulting to both the court and its processes.": at para. 58.

[62] In the end, Justice Mesbur did not strike the motion to change or grant the order to declare Mr. Blase a vexatious litigator. While she considered Mr. Blase's actions vexing, she found that they did not meet the high bar to have him declared a vexatious litigator. She concluded, at para. 59, that "his clearly vexing behaviour, however, must be limited and curtailed in other ways." She ordered security for costs and other measures. That proceeding eventually resolved.

The Issues

[63] Mr. Blase raises several complaints regarding the defendants. They are styled as negligence claims. They are described as follows:

(a) That the defendants failed to warn him about the strengths and weaknesses of his case, the cost consequences, and the impact of his breaches of the Order;

(b) That the defendants failed to properly investigate the facts relating to the material change in circumstances; and

(c) That the defendants failed to communicate with him about the impact of his conduct and the circumstance of the settlement offers.

[64] It is further alleged that the defendants breached their fiduciary duties to the plaintiff. This claim is based on the same allegations as the negligence claims.

[65] The defendants reject each of the allegations. Moreover, they assert there is no causation even if there were a failure to meet the standard of care expected of a lawyer in similar circumstances. Rather, the defendants assert that Mr. Blase would have proceeded to trial in any event. They further assert Mr. Blase was advised to settle, but he proceeded to trial knowing there was a risk in doing so.

Applicable Legal Principles

[66] There was no debate by the parties as to the applicable legal principles. In order to prove negligence, the plaintiff must demonstrate that 1) the defendants owed him a duty of care; 2) the defendants' actions or omissions fell below the standard required in the circumstances; 3) the plaintiff sustained damaged as a result of the acts or omissions, and 4) the damage was caused in fact and in law by the defendants breach: Levac v. James, 2023 ONCA 89, 89 C.C.L.T. (4th) 27, at para. 43.

[67] As lawyers to Mr. Blase, there is no issue that the defendants owed him a duty of care.

[68] As to the standard required, it is agreed that the defendants were required to meet the standard of a reasonably competent lawyer in the circumstances: Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at p. 208. In this case, the defendants are required to meet the standard of a reasonably competent lawyer advising and acting in furtherance of a motion to change a parenting order.

[69] However, the lawyer is not an insurer of success. The issue is whether there was a breach of the standard of care owed to the plaintiff, not whether the motion to change should have succeeded. As the Court of Appeal observed in Folland v. Reardon (2005), 74 O.R. (3d) 688 (C.A.), at para. 44:

Lawyers make many decisions in the course of a lawsuit. Those decisions require the exercise of judgment. Inevitably, some of those decisions, when viewed with the benefit of hindsight, will be seen as unwise. The reasonable lawyer standard does not call for an assessment of the sagacity of the decision made by the lawyer. The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of the reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged, even if the decision proves to be disastrous.

[70] In this case, both sides called family law experts. The plaintiff called Ms. Lenkinski, and the defendant called Mr. Dart. Both were accepted as experts in family law. There was a challenge to Ms. Lenkinski's evidence, which I will address shortly.

[71] The plaintiff must also establish that the defendant's negligence (breach of the standard of care) caused the injury. In respect of causation, the test is the "but for" test. As Justice McLachlin noted in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 9, the test "must be applied in a robust common sense fashion" and it is not a scientific exercise. In Folland, at para. 61, the Court of Appeal described how the "but for" test applies to solicitor negligence cases such as this as follows:

"But for" factual causation has been employed in solicitor's negligence cases, particularly those where the plaintiff contends that he received negligent advice and would have acted differently had he received appropriate advice. In those cases, the plaintiff must show on the balance of probabilities that if properly advised, he would have proceeded in a manner that avoided the damages suffered or obtained the benefit lost as a result of the negligent advice.

[72] Mr. Blase has the onus of establishing his cause of action and damages on the balance of probabilities by adducing clear, cogent, and convincing evidence in support of each element of his claim: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.

Analysis

[73] While the plaintiff breaks down the negligence into three groupings, the action involved a continuum of interactions between the parties which is not so neatly divided. I will address the allegations in that fashion. As already previewed, I do not find that the defendants were negligent. Moreover, as discussed below, Mr. Blase was intent on proceeding with this motion, regardless of the advice of the defendants. The motion was fundamentally lost because Her Honour found that there was no material change in circumstances because Mr. Blase still travelled internationally.

[74] In considering the evidence, I prefer the evidence of Mr. Niman, Ms. MacKenzie and Ms. Jackson over that of Mr. Blase. In my opinion, this action appears to be motivated by Mr. Blase's desire for solace over the "humiliation" of Her Honour's findings and a need to justify his own actions in both bringing the motion and how he was characterized in the decision. In doing so, he seeks to blame the defendants. His testimony was slanted so as to cast blame on the defendants, making it difficult to believe many of his assertions.

[75] In saying that I prefer the defendants' evidence, I appreciate that Mr. Niman's recollection of events that occurred some ten years ago was not perfect. As the senior partner, he relied on others but ensured that he was briefed so he could provide his input. In that role, he would not have been privy to every detail, so I do not find his lack of detail as either surprising or causing me to question the reliability of his evidence on the matters most germane to this litigation. Similarly, while Ms. MacKenzie often referred to her "usual practice", I did not find this to be a detractor from her evidence. This action addresses matters from 10 years ago, and Ms. MacKenzie has been retired for some time. Her reference to her usual practice was understandable. When challenged on her recollections, she testified in a forthright manner, and it was clear when she was relying on her usual practice, which I understood was not a direct recollection of what had necessarily transpired. Nonetheless, any inconsistencies raised were not significant. There was no issue taken with Ms. Jackson's testimony.

[76] On the issue of the experts, the defendants argue that Ms. Lenkinski lacked the objectivity of an expert. They point to several alleged failings, including her reliance on others, her failure to read the trial transcripts, and her alleged misquoting of case law. It is argued that her willingness to provide opinions on the conduct of the defendants where she has not sufficiently familiarized herself with the underlying proceedings demonstrated a lack of objectivity. Indeed, they cite her own evidence in which she advises she would be reluctant to give an opinion about the trial without reading the trial transcripts but then does so anyway.

[77] There is no formal motion to exclude her evidence. While the defendants were able to poke holes in some of her opinions, I do not accept that Ms. Lenkinski was biased or unwilling to meet her primary duty to the court to provide fair, non-partisan, and objective assistance: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 49. Therefore, there is no basis not to consider her evidence. However, regarding the arguments about the frailties in her evidence, I have considered them in my preference for accepting the expert evidence of Mr. Dart where the two conflict.

[78] I start with Mr. Blase's principal allegation, which is that the defendants failed to advise him of the crucial aspects of his claim or warn him of the risks associated with the motion to change. Despite acknowledging the inherent uncertainty in litigation, he claims that Mr. Niman advised him that the motion would be a success and failed to advise him as to the downside risks, including the risk of an adverse costs award. The defendants reject this contention, asserting that Mr. Blase was resolute in proceeding with the motion, regardless of any advice.

[79] In testimony, Mr. Blase repeatedly maintained that had he received different advice, he would not have proceeded with the motion to change. I reject this assertion. First, as already noted, I accept the position that Mr. Blase was intent on proceeding with the motion to change, and he demonstrated repeatedly that he had every intention of proceeding regardless of any advice he might receive. I am satisfied he understood the risks involved. His intent throughout was to defeat Ms. Easson, and he would not let others dissuade him.

[80] This desire to proceed with the motion was evident when he rejected the advice to settle, even though he was offered even more than he might reasonably receive at trial. At that point, he insisted on additional changes to the Order. He rejected the defendants' advice that an appeal would likely be unsuccessful and appealed. The moment he lost the appeal, he promptly reconstituted the motion to change, even though he refused to pay the costs of the prior proceeding until confronted by the court. His intention was and remained to hand Ms. Easson a sound defeat and the advice of counsel to the contrary was rejected.

[81] The plaintiff states that the decision of Justice McWatt is the "prism through which to understand the defendants' negligence". While Mr. Blase may find the decision of Justice McWatt unflattering, the crux of the decision comes down to the fact that Her Honour did not accept his change in employment to be a material change in circumstances. Her finding was that he had to travel in his new job based on the evidence at trial. She expressly found that "the father testified at the trial that this job does, however, require international travel". I have no trial transcript. As I have noted, I can only infer Mr. Blase's evidence was at odds with his affidavit evidence and the letter from his new employer, both of which stated he would not have to travel. The reason for his change in evidence was not made clear in this proceeding but there was no evidence in this trial that the defendants were made aware that Mr. Blase would testify contrary to his earlier sworn testimony. While the plaintiff asserts there was a failure to investigate, he did not suggest what type of investigation would uncover this change in testimony.

[82] Her Honour concluded the jobs at Holland & Knight and Thomson Reuters were not so different and would not materially change Mr. Blase's availability to parent. In the face of this change in testimony, it is difficult to understand how the defendants' advice or actions could have changed the outcome of the litigation, as there is no evidence that the defendants were aware in advance of this change of testimony.

[83] In terms of the advice received from the defendants, Mr. Blase repeatedly testified that he was advised by Mr. Niman that he had a "slam dunk" or "home run" case. This comment was alleged to be made in a September 2012 meeting with Ms. Jackson and Mr. Niman. At that time, the focus was on whether Julian could get on the same four-day schedule as Nikolas. Mr. Blase asserts that Mr. Niman told him he had a "home run" or "slam dunk" case for more parenting time. Mr. Niman was unable to recall the meeting in detail but does say that the residential schedule was terribly lopsided. Mr. Blase was effectively getting 3 days out of every 14 with Julian and 4 days out of every 14 with Nikolas. The two experts who testified at the trial agreed that Mr Blase's time with his children under the Order was unusually low. However, it was apparent in September 2012 that there was no basis to bring a motion to change, and none was contemplated at that time.

[84] Despite not being able to recall the exact conversation ("home run" or "slam dunk"), Mr. Blase has placed significant emphasis on it. In his testimony, he spoke of the conversation as almost a warranty that he was entitled to more time with his children and that he relied on the statement when proceeding with the motion to change. Statements made in the September 2012 meeting cannot reasonably be interpreted as Mr. Niman's opinion that the motion to change pursued in 2014 and 2015 was a "slam dunk" or "home run". The fundamental basis for the motion was the change in Mr. Blase's work schedule, which would not occur until 2014. Mr. Blase's insistence that these comments were an opinion by Mr. Niman undermines his credibility and reliability. It is implausible that he could genuinely believe that statements made in 2012 were an opinion as to the success of a motion involving a change in circumstance that had yet to occur.

[85] Mr. Blase argues that he did not appreciate what constituted a material change in circumstances because the defendants failed to advise him as to the test for a material change. I disagree. I have already set out the test for a motion to change as set out by the Supreme Court of Canada in Gordon v. Goertz: see para. 31 above. The threshold portion of the test addresses the need for a material change in circumstances.

[86] I am satisfied that Mr. Niman adequately explained to Mr. Blase what was needed to establish a material change in circumstances, including the specific circumstances being advanced in his motion. Mr. Blase correctly understood that the change had to be a "substantial" change. Indeed, Mr. Blase testified that Ms. Mills explained the concept when the Order was agreed upon as to what a material change motion entailed. He was advised and further understood that a change in his work schedule might well constitute a material change in circumstances. Mr. Blase was involved in the preparation of the motion material which clearly sets out what was the principal change in circumstances being the lack of travel in his new job. He was also aware that affidavits were filed by friends attesting to his positive attributes as a parent which was intended to demonstrate that the best interest of the children would include more time with their father.

[87] It was argued that the defendants were negligent in relying on the change of Mr. Blase's work schedule as a change in circumstances warranting a change to the parenting schedule in the Order. However, I accept the evidence of Mr. Dart that a change in a parent's ability to spend more time with their children due to a new job with less travel could well meet the test in Gordon v. Goertz. I also accept Mr. Dart's evidence that the fact that Mr. Blase was in a new and stable marriage would assist in bolstering that material change of circumstances. Indeed, even after the decision, Mr. Blase was advised by Mr. Grant that there was merit in an appeal, by which I infer Mr. Grant found merit in the motion. Furthermore, Justice McWatt did not reject the argument that a change in Mr. Blase's travel schedule could constitute a material change. Instead, as noted, based on his trial testimony, she rejected the factual contention that Mr. Blase's travel schedule had, in fact, changed.

[88] Mr. Blase understood his change in jobs was the foundation of the material change motion. It was made clear to him by both Mr. Niman and Ms. MacKenzie. It was spelled out in his affidavit and the letter from his new employer. Until he testified at trial, Mr. Blase's testimony was that he would not have to travel, and this was corroborated by his employer. I see no fault in the Firm's investigation of the plaintiff's assertion about travel requirements. The problem was that Mr. Blase testified contrary to his affidavit and the corroborating letter.

[89] While Mr. Blase's legal background does not mean he would know the intricacies of Ontario family law, I am satisfied that he had the intellectual acumen to ask questions if he failed to understand what the legal test or process was for a motion to change. There is no evidence he ever expressed any doubt as to the nature of his case or the risks associated with the case.

[90] There is no formal opinion letter outlining the strengths and weaknesses of the case. While it may be best practice to prepare a formal opinion, I accept Mr. Dart's opinion that this is not the required standard of care. Instead, the standard of care requires that advice is to be "effectively brought home to the client": Turi v. Swaniak (2002), 61 O.R. (3d) 368 (S.C.), at para. 56; Kumar v. Atkinson, at para. 29; Girardet v. Crease & Company (1987), 11 B.C.L.R. (2d) 361 (S.C.) at p. 370. In my view, the failure to put the legal advice in writing, in this case, did not constitute a breach of the standard of care by Mr. Niman. Instead, I find Mr. Niman effectively communicated to Mr. Blase the test for material change, including the necessary evidence to support both the material change threshold and the best interest of the children analysis.

[91] Several arguments were raised regarding other failures by the Firm. It is argued that the Firm failed to advise Mr. Blase that his conduct toward Ms. Easson would be detrimental to his case, that his conduct in doing so was a breach of the Order regarding civility, and that further investigation was warranted as to Ms. Easson's conduct.

[92] In my opinion, Mr. Blase was adequately advised that his treatment of Ms. Easson would undermine his credibility with the court. Indeed, more than one person at the Firm advised him of that risk. In August 2014, Mr. Niman wrote to Mr. Blase advising him that his intemperate emails would be damaging to his case. Mr. Niman wrote, "All of these emails will be presented by [Ms. Easson] to the court and will reflect badly on you and hurt an otherwise good case ([I] know you think otherwise but we are very clear about this)". Mr. Blase was aware of his obligations under the Order to be civil with Ms. Easson. While I accept the evidence of the experts that some litigants need to be told to be civil, it is hard to fathom why a person as sophisticated as Mr. Blase would need to be told not to call another lawyer a profane name or to intimidate a spouse in court. Regardless, in my view, Mr. Blase was adequately warned, and in any event, he was intimately aware of the civility requirements in the Order.

[93] Mr. Blase also submits that, aside from his conduct toward Ms. Easson, he ought to have been warned that his failure to pay his share of the nanny expenses would be seen as a breach of the Order. The experts testified that such breaches could damage a case, and a client should be warned of such. Mr. Blase advised Mr. Niman that Ms. Easson had agreed in a mediation to reduce the nanny's hours, and he felt he should pay the reduced amount. Mr. Niman advised Mr. Blase to pay the full amount owing. Mr. Blase persisted that he did not want to pay. Mr. Niman suggested that if the nanny hours were reduced or no longer required, it might be argued that the nanny payments were a type of support to Ms. Easson but acknowledged that this argument would be an "uphill climb". In essence, Mr. Niman provided Mr. Blase with a possible argument if Mr. Blase insisted on not paying the required amount. A lawyer is not negligent for discussing possible mitigating arguments when their initial advice is rejected. That is all that happened here. Mr. Blase was aware of what the Order said and that he was not paying in accordance with the Order. Mr. Blase did not pay the required amount until Ms. MacKenzie persuaded him to do so. Justice McWatt, in considering the second part of the test in Gordon v. Goertz, concluded that Mr. Blase would not follow the Order as it related to the nanny expenses as he unilaterally stopped paying. This was cited as one of several examples of Mr. Blase's failure to avoid unnecessary conflict, but it alone was not determinative or causative of the outcome of the motion.

[94] Mr. Blase was warned from the outset that both the outcome and costs of the litigation could not be guaranteed. He was aware of the mounting costs as the matter made its way to trial and addressed accounts with the Firm as submitted. Indeed, the Firm did not charge him for the trial time. He was also aware that adverse costs awards were a risk of being unsuccessful in litigation. His emails demonstrate his understanding of the cost's regime, as he repeatedly warned that Ms. Easson was exposed to costs if she did not settle. For instance, when considering settlement, he instructed his counsel to remind Ms. Easson that they were "talking about MASSIVE legal fees" if she did not settle. In my view, Mr. Blase fully comprehended that an adverse costs award was a potential risk of proceeding with the motion.

[95] The plaintiff argues that the defendants failed to investigate Ms. Easson's breaches of the Order. Mr. Blase was of the view Ms. Easson had breached the Order on several occasions. However, Justice McWatt found that Ms. Easson was following the Order. It was not clear what investigations the defendants failed to conduct that could have altered Justice McWatt's view of Ms. Easson's conduct. Despite this, the case was lost when Mr. Blase testified he would continue to travel internationally. Any breaches by Ms. Easson of the Order would not have changed this fundamental failing.

[96] It is further argued that the defendants should have requested the recommendation of Dr. Butkowsky before proceeding with the motion to change, which was arguably available to them under the Order. However, as Mr. Dart opined, any communication with Dr. Butkowsky would have been shared with Ms. Easson, and a prudent counsel would not ask for a recommendation without foreknowledge as to the likely recommendation. For this reason, the defendants asked Mr. Blase as to the likely recommendation Dr. Butkowsky might provide. Mr. Blase advised that Dr. Butkowsky would not be particularly helpful and that he would comment on how the parties were constantly hostile to one another. Accordingly, no recommendation was sought by the defendants. I see no fault in the defendants' approach.

[97] Mr. Blase argues that the settlement offers were not properly explained to him. He asserts that he needed to have a fuller understanding of his case to comprehend the offers. He asserts that he was faced with offers which he had little time to consider. I accept that a lawyer has a duty to ensure that the client must appreciate the nature of the litigation to understand and assess offers being made. In this case, as previously explained, Mr. Blase had that context. He knew that the case hinged on proving a change of circumstances, which was dependent on the judge's appreciation of his change in work and travel, particularly his ability to be at home more, and whether a change in the residential schedule was in the best interest of the children. He also knew his conduct would be in issue when considering what was in the best interest of the children. In my view, he had a sufficient knowledge of the case to assess any offer.

[98] Mr. Blase takes particular issue with the fact that the offers were made on the eve of the trial, that the advice on the offers from the Firm was provided at that time, and that his response to the offers was required in short order. This was not the fault of the defendants but rather the nature of litigation. Offers to settle are commonly made just before the reckoning of a trial. No offer was satisfactory to Mr. Blase. This was not because he was poorly advised or ill-informed. Rather, Mr. Blase was not content to simply have more access to his boys. He wanted a wholesale change to the Order. He wanted a better financial deal. Mr. Niman was right when he said that Mr. Blase lost sight of the purpose of the motion to change, which was to increase his access to his children. Mr. Blase rejected offers that would have provided him with more access to his children and did so with his eyes wide open.

[99] In this litigation, Mr. Blase seeks to blame counsel for the litigation he freely started with full knowledge of the risks. He appealed Justice McWatt's contrary to the advice of the defendants. Once the appeal was over, he commenced a second motion to change. He did so without the advice of the defendants. He did not heed counsel's advice to settle and has been in a protracted state of litigation for 10 years as a result. While I do not find fault with the advice or conduct of the defendants, I would have great difficulty accepting that any conduct or advice of the defendants could have dissuaded Mr. Blase from proceeding with the motion to change. As such, had I found negligence, I would not have found it to be causative of the loss claimed.

[100] Mr. Blase alleges that the defendants breached their fiduciary duty by failing to advise him that his conduct toward Ms. Easson and his failure to pay the nanny expenses was a breach of the Order. He also claims that he should have been advised that how he treated Ms. Easson could result in an adverse credibility finding by Justice McWatt. It is not disputed that a lawyer is in a fiduciary relationship with their client. A failure to disclose material information may give rise to a breach of a fiduciary obligation by a solicitor: Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 SCR 534, para 28. If a breach of a fiduciary duty is established the onus is on the defendants to prove that no damages would have been suffered as a result of the breach: Canada Trustco Mortgage Co. v. Barlet & Richardes (1996), 28 O.R. (3d) 768 (C.A.), at p. 775.

[101] It has been noted that not every breach by a fiduciary is a breach of a fiduciary duty: Meng Estate v. Liem, 2019 BCCA 127, 23 B.C.L.R. (6th) 38, at para. 35. While not an exhaustive list, the British Columbia Court of Appeal explained that " [t]ypically, a breach of fiduciary duty captures circumstances in which there is a breach of the duty of loyalty owed by the fiduciary and includes circumstances involving acting in the face of a conflict, preferring a personal interest, taking a secret profit, acting dishonestly or in bad faith, or a variety of similar or related circumstances." In short, all failings by a lawyer do not amount to a breach of a fiduciary duty. What is alleged here is negligence and not a breach of any duty of loyalty. The Firm did not prefer its own interest or take advantage of Mr. Blase in any way. Accordingly, there is no evidence that there was a breach of any fiduciary duty.

[102] If the alleged breach of a fiduciary duty in this case constitutes a valid claim, I have already concluded that the defendants did not fail to adequately advise the plaintiff. Moreover, for such a claim to succeed, the plaintiff must establish that "the misrepresentation or omission was a material one in the sense that it would be likely to influence the conduct of the plaintiff": Canada Trustco, at p. 773. As already noted, the plaintiff was not prone to taking advice, and I believe his conduct would not have been materially affected. Furthermore, if I had found there was an omission or misrepresentation as alleged, I would have concluded that the defendants established that Mr. Blase would have suffered the same loss, regardless of any breach of their fiduciary duty, as he would have acted the same regardless, including continuing with the motion to change.

[103] For the above reasons, I dismiss this action.

Damages

[104] I have the following observations regarding the claim for damages.

[105] The plaintiff claims that he incurred significant expenses because of the defendants' negligence. He claims:

(i) His fees paid to the Firm (the Firm did not bill him for the trial time) - $185,000;

(ii) The cost award in favour of Easson - $78,675;

(iii) Appeal costs of Mr. Grant - $48,201.11;

(iv) Trial transcripts for the appeal - $10,910.38;

(v) His self-calculated fees for the second motion - $117,981.63

(vi) Retainer of Dr. Butkowsky for the trial - $1,750;

(vii) Interest on a home loan to pay his legal fees - $5,783.92; and

(viii) Costs related to an order of Justice Glustein (as a result of a motion to obtain his file from the Firm) - $3,000.

[106] Aside from item (v), the defendants do not take issue with the amounts in the above list. However, even if they were negligent, which I have found they were not, the defendants assert most of these amounts are not compensable as they were not caused by any of the alleged failing of the defendants. I agree.

[107] First, I fail to understand how the defendants, even if negligent, could be responsible for any costs following the trial. They recommended against the appeal and had no involvement in the second motion to change. Nothing the defendants did compelled the plaintiff to take these actions or incur the costs associated with those proceedings. Neither were successful attacks on Justice McWatt's decision. As such, I would not have awarded anything for the appeal, the transcripts, or the second motion to change.

[108] In addition, for the second motion, Mr. Blase seeks compensation for his time invested in acting on his own behalf. He points to the fact that Ms. Easson was self-represented and was awarded costs by Justice McWatt. Even assuming that this is an apt comparison, there is insufficient evidence to conclude that Mr. Blase would be entitled to the costs he seeks in representing himself. There is no evidence of foregone employment or remunerative pay and nothing but a rough statement, prepared after the fact, of what he believes the hours were that he spent on that second motion. Self-represented litigants are only entitled to fees where they devote time and effort to do the work ordinarily done by a lawyer in the conduct of the litigation and, as a result, incurred an opportunity cost by foregoing remunerative activity: Girao v. Cunningham, 2021 ONCA 18, 13 C.C.L.I. (6th) 1, at paras. 9-11; Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228, 433 D.L.R. (4th) 112, at para. 33. There was no evidence of foregone remunerative activity as a result of the second motion to change. There was no evidence as to what preparations were involved in the second motion by which this court could assess what work usually performed by a lawyer was undertaken by Mr. Blase.

[109] As for the fees charged by the Firm, as recognized by the plaintiff in closing argument, there was no issue with the work done by Ms. Jackson and agree the fees incurred during her tenure on the file need not be repaid. Those fees amount to $18,762.07.

[110] Further, the advice from the defendants was that Mr. Blase should accept the offers from Ms. Easson. In my view, this advice was sound and ought to have been accepted. Had it been accepted, there would have been no trial and no costs from that point onward, including Dr. Butkowsky's trial fee, the costs awarded in favour of Ms. Easson, the appeal costs, and the second motion fees. As such, had I found that the defendants were negligent and that the negligence did not affect the advice to settle, I would have deducted those amounts from any damage award.

Disposition

[111] The action is dismissed.

[112] The parties are encouraged to agree on costs. Any party requesting costs shall serve and file a bill of costs and a submission of no more than six pages within ten days of the receipt of this judgment. Any responding submissions of six pages must be accompanied by the responding party's bill of costs and must be served and filed ten days after receipt of the requested costs.

Callaghan J.

Released: September 22, 2025