Costs Awarded for Lack of Preparation for a Case
A recent SCJ case by Tellier, J in Chamberlain v. Chamberlain, 2020 ONSC 5169 (CanLII) is an interesting read about the importance of preparing for a case.
Let me give the Judge’s observations first on the history before the reasons for the cost analysis:
“The respondent’s late confirmation dated September 9, 2020 indicates an adjournment of the conference is contested, while acknowledging parenting issues had recently been brought to his attention. Counsel did not explain the delay or undertake to meet any new deadline, having missed the one he consented to. Counsel’s attached letter states he didn’t want to drive from Toronto to Belleville for an unproductive conference. He could have asked for a teleconference pursuant to Rule 14(8) of the FLRs. He could have filed a 14B motion pursuant to Rule 14(10) of the FLRs, to ask the court to consider his adjournment request. Instead father and his counsel simply failed to attend the continued case conference. He hired no local counsel as agent to address the court. I ordered costs in the sum of $1500.00 for the “no show”, $1000.00 less than what the applicant warned the respondent he would be seeking.
I set November 25, 2019 as the next conference date on the expectation the income report would be available by the extension, as ordered. At the conference on November 25, 2019, the income report was still unavailable and some disclosure remained outstanding. As noted in the endorsement of that date, counsel for the respondent father did not demonstrate a good grasp on the status of his client’s disclosure, including whether certain documents were in his possession, the possession of his client, in the possession of his client’s bookkeeper, in the possession of the CBV, or whether they had been provided to opposing counsel. Father himself was unsure of the status of his disclosure obligations. This took considerable time to sift through, as did the exercise of going through fresh requests.
Breaks were taken so that phone calls could be made. Authorizations and directions were prepared by mother’s counsel for father’s execution to facilitate mother’s ability to access financial information directly. Time was taken to address the outstanding steps necessary to conclude the property deal. There was a discussion about the timing of the payment of the $12,500, still owing under my previous order, since the income report was not delivered by the extended deadline. The resolution of all of these issues was memorialized in a lengthy consent endorsement.
At the conference held on May 20, the court did not have the benefit of the father’s CCB. Notably, counsel for father did not know whether he had ordered the transcript or whether he had even received my order granting his request for it. The conference was adjourned to the next day so this could be sorted and I could read father’s brief in preparation for the conference.
At the May 21, 2020 conference there was a lengthy discussion about the parenting issues, with everyone having the benefit of the CAS Summary Report. I gave a recommendation and opinion in relation to a final resolution on parenting.
It became apparent that father’s counsel had received my order granting leave for him to order the transcript back in early March 2020; two months later, he had not done so. The consent arising from the May 21, 2020 conference also addresses that issue.
Case management is also foundational to the family justice system. Through a series of conferences, the parties exchange information and positions, clarify the issues, narrow the contested terrain, always working towards settlement under the guidance and direction of the court. This only works if all parties follow the rules, provide the necessary disclosure for meaningful analysis and negotiation and come to conferences prepared, including prepared to compromise.
The father’s approach to these obligations and this process was counter-productive. The production process has been arduous, costly, and delayed. Delay invariably works contrary to the children’s best interests; it keeps the conflict between the parties going. Father’s approach has deprived the applicant of a timely resolution of all of their family law issues. It has required greater court oversight and resources. A co-operative and organized approach would have promoted efficiencies and reserved resources. Rule 2 demands no less of all parties, their counsel and the court, in the joint enterprise of dealing with cases justly.
Mother seeks costs under Rule 17(18) of the Family Law Rules which provides:
Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),
(a) order the party to pay the costs of the conference immediately;
(b) decide the amount of the costs; and
(c) give any directions that are needed
As highlighted by the court in Bourgeoius v Bourgeois, 2011 ONSC 345 at para. 11, the mandatory language embodied in the rule connotes a deliberate policy choice to:
… treat conferences as significant judicial events, and not merely a series of assisted courthouse negotiations. The strain on judicial resources during certain periods and within certain jurisdictions can limit the availability of the court but, it in no way limits the obligation on parties to be prepared for scheduled conferences.
The purpose of this cost rule is twofold. First, it aims to compensate the party whose progress towards resolution is impeded by the other party’s lack of preparedness or compliance with the rules, with an attendant increase in fees. Second, it serves to sanction the non-compliant party and deter others from engaging in the same conduct.
I have no hesitation in concluding mother is entitled to costs. Her counsel’s Bill of Costs includes his time, as well as that of his clerks, leading up to the conferences, his time at the conferences and other tasks ancillary to those conferences. What the Bill of Cost does not reflect is that the November conference was not a complete waste of time, as evidenced by the lengthy consent endorsement. Likewise, in May, time was spent on parenting issues, as well as father’s motion to set aside portions of the operative orders, a motion now abandoned by fresh counsel. The income report, now finally available, led to some discussion. The Bill of Costs also includes considerable time between November 26, 2019, the date of the conference, to March 23, 2020 that is hard to relate to conduct captured by the rule.”
The Court ordered $ 6000 to be paid as costs.
I chose this case for the blog analysis because it gives a birds eye view of the responsibilities that a client and lawyer have to fulfill in going for a conference or for even any case before the Court. Preparation is key. Preparation means taking time to review the case, the facts and being certain of the facts in the case, its history and being able to answer the questions posed by the Judge. A lawyer and client can avoid embarrassing questions and observations as made by Tellier J if the party and their lawyer is fully prepared and knows what is going on.
At Shankar Law, we strive to be fully prepared. I like to think that the client and I have a solid partnership. We have to have an understanding about the case, its nuances and minute details. Please allow us to assist you!
At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal, parental and marital life. While we work throughout Ontario, we primarily work in three counties: Huron, Bruce, and Grey and span several cities (Port Elgin, Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.