Father Who Needlessly Ran Up Litigation Costs Ordered to Pay His Own Way
This is a case about legal costs – and how not to incur them unnecessarily in family litigation, or else you may not get reimbursed for them even if you are the successful party.
In Czegledy-Nagy v. Seirli, the couple – both highly-educated academics – had met in South Africa in 2002, married two years later, and had three children (triplets) together. They separated in 2011, two years after they had moved back to Canada. The separation was punctuated by the mother suddenly and secretly moving the children to a rental apartment, which the court called the mother’s “selfish action to remove the children from their home and their father.” (Note: The court later penalized the mother for it, by depriving her of two months’ spousal support.)
In response to that conduct – and to avoid allowing the mother to establish a status quo on which a later court-imposed custody order might be predicated – the father brought an emergency motion for temporary custody, in which he was successful. This was followed by another formal court order that they share custody of the children on a weekly basis.
Normally, the rule in family litigation is that the “losing” party is obliged to pay the legal costs of the successful party. The father accordingly asked the court to order the mother to pay his legal costs for the motion he had been forced to bring.
In this case, however, the father had spent a whopping $65,000 just to obtain the temporary order, by way of two motions that the court adjudged as being “not particularly complex or difficult”.
In assessing the situation, the court made the following general comments about these kinds of situations in which one party runs up legal costs, essentially at the expense of the other:
Although I have examined both lawyers’ Costs Outlines with great interest, I do not intend to analyze each in detail other than to make the following general observations:
a) If a litigant commences an action in his/her own community, it ill behooves him/her to retain counsel in the largest metropolitan center in the Province (where fees are subsequently higher per hour), than where the litigation is situate, then to ask that the court impose those higher costs and travel expenses upon the opposite party should he/she lose the motion.
b) While I recognize that modern legal practice has available to a client a team of legal staff, each contributing something to a motion, senior counsel need not make her own arrangements to have documents served, attend from Toronto to Kitchener to file those documents with the Court, nor should she need to prepare charts or document briefs at her hourly rate of almost $600 per hour and expect a losing party to reimburse her client for those efforts.
A losing litigant should also not be expected to pay for that senior counsel supervising a junior counsel’s work or for the duplication of various lawyers “reviewing & revising” work already prepared (and billed to the client) by other lawyers or senior law clerks. For example, in this case three lawyers involved themselves in this rather simple motion (with many heads of relief, I grant) drafting, reviewing and revising each other’s work for a total of well over 40 hours plus over six hours for “research”. The cost of all that attention to Prof. Czegledy-Nagy is almost $15,000. On top of that counsel has charged Prof. Czegledy-Nagy over eight hours of preparation on the day before and day of the motion plus 10.3 hours, including travel, on the day of the motion. That effort alone cost the Applicant almost $11,000. Added to that cost is the cost of the law clerk that attended the motion (to drive and take notes at the motion I presume) at $175/hr for an additional expense of just over $1,800 for the day.
Professor Czegledy-Nagy may hire as many lawyers as he wishes to have on his team, from whichever city he wants them to come from. That is his prerogative. … However, no litigant should expect to drive up the cost of litigation in that manner for his/her own satisfaction or his/her need for attention and then to have the court saddle the other litigant with that bill.
There are many very competent local counsel (some are even LSUC family law “specialists”) in this Region. The need to import another from afar is unnecessarily and indulgent.
In any event, the Court need only consider as one factor the amount that a successful litigant has expended to achieve success. Some litigants need more “hand-holding” than others and some counsel bill heavily for the slightest effort where others do not. …
With this in mind, the question for the court was whether the father was reasonable in running up $65,000 in legal costs for this temporary custody order, and whether the mother could “possibly anticipate an order for costs against her even approaching such a breathtaking quantum were she to lose those motions.”
It was true that the father “won” the more central issues and was technically the successful party on the litigation. It was also true that the mother had persisted in presenting and pursuing scandalous allegations against the father in her pleadings, and essentially exacerbated an already traumatic separation in a most inappropriate manner.
Ultimately, however, the court concluded that the mother “could not possibly anticipate being held responsible for the gargantuan costs order as sought, especially when her counsel charged her only $15,000 for those same services.” It accordingly declined to award the father the full $65,000 in costs, and instead ordered the mother to pay $9,500 of them.
Czegledy-Nagv. y Seirli (2012), 2012 ONSC 119 (S.C.J); additional reasons to (2011), 2011 ONSC 6488 (S.C.J.)