Dunford v Birnboim, 2017 MBCA 100

Citation: Dunford v Birnboim, 2017 MBCA 100 Date: 20171017 Docket: AF16-30-08697 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Alan D. MacInnes Madam Justice Janice L. leMaistre BETWEEN : del thomas dunford ) E. S. Birnboim ) on his own behalf (Petitioner) Respondent ) ) L. I. Z. Pinsky and - and - ) J. A. Schofield ) for the Respondent JOANNE ELLEN Dunford ) D. T. Dunford ) (Respondent) Respondent ) No appearance ) for the Respondent - and - ) J. E.

Dunford ) ELLIOT BIRNBOIM ) Appeal heard and ) Decision pronounced: Appellant ) October 17, 2017 On appeal from Dunford v Dunford , 2016 MBQB 196 CHARTIER CJM (for the Court): [ 1 ] This case highlights everything that is wrong with our family law court system: an adversarial system, where one member of the family is pitted against the other, where lawyers advocate what they perceive to be best for their respective client, not necessarily the family unit, and where the cooperation necessary to deal with the issues is weakened by the inherently combative and potentially lengthy nature of a court proceeding. [ 2 ] Former counsel for the wife, Elliot Birnboim, appeals the decision of the motion judge to award costs against him personally for $10,000 all-inclusive, payable forthwith.

The husband cross appeals arguing that the amount should have been for $15,432.73, representing costs on a solicitor and client basis. [ 3 ] It appears that the parties’ assets were substantial. They had previously settled all matters except prospective spousal support after a certain date. The husband then petitioned for divorce, seeking no costs if the petition was not contested. That proceeding should have been simple and straightforward. Instead, it dragged on pointlessly, causing needless court filings and delays as well as thousands of dollars of fees and costs.

As this Court has previously stated, the court system, with its overtaxed and limited resources , is not intended to be the preserve of the wealthy who choose not to practically and efficiently resolve their disputes (see Gale v Gale , 2007 MBCA 162 at para 32 ; and an earlier decision involving this matter, Dunford v Dunford , 2012 MBQB 204 at paras 41-48 ). [ 4 ] In other cases, indeed most, parties should not be required to face the continuing trauma of significant expenses and protracted proceedings at an exceedingly vulnerable and emotionally charged period of their lives, namely, marital and family breakdown.

There has to be a better way. [ 5 ] Report after report has stated that the adversarial system is ill suited for divorcing couples who are seeking to reframe their familial relationships in a fair and prompt manner. It is ill suited for essentially two reasons. First, conflicts between spouses are not comparable to disputes between strangers given that they entail much more than resolving legal differences. There are emotional, psychological and financial aspects that also need to be resolved.

Second, unlike other types of disputes, marital disputes have an ongoing nature to them either because of spousal and/or child support issues or of continued parenting responsibilities. [ 6 ] Here, in our view, there is no merit to either the appeal or cross appeal.

[ 7 ] Generally, leave is a prerequisite when appealing only an award of costs. However, when such an order is awarded against a lawyer acting in a proceeding, leave is not required (see section 90(2) of The Court of Queen’s Bench Act , CCSM c C280). A costs award is to be reviewed on a highly deferential standard. It will only be set aside if it is based on an error in principle or is plainly wrong. [ 8 ] In his reasons, the motion judge correctly stated the legal principles to be applied when considering whether to award costs personally against a lawyer.

He expressly referred to the relevant factors to be considered and acknowledged that his discretion to make such a costs order should be exercised only in the rarest of cases. He then reviewed at some length the evidence filed on affidavit.

Key to his decision was his finding that there had been “reprehensible conduct” (at para 32) by counsel for the wife arising from the preparation and filing of affidavits, pleadings and motion briefs in contravention of the rules and “an acknowledgement during submissions that he had used the court proceeding as a form of ‘leverage’, to attempt to obtain fresh concessions and/or additional relief for his client, for which she was not in this proceeding entitled even to make claim” (at para 36). [ 9 ] In our view, there is an evidentiary foundation to support the motion judge’s factual findings.

Moreover, we have not been convinced that the motion judge misdirected himself or that his decision is plainly wrong. Appellate intervention is unjustified. [ 10 ] The above-stated conclusions also apply to the cross appeal. The motion judge ordered costs against counsel “at an elevated level” (at para 32), which he then quantified at $10,000, all-inclusive.

The husband argues that the $10,000 costs award is not “elevated” since it is essentially equivalent to the Class 4 level he sought ($9,025 plus taxes and disbursements, which, in this case, would have been $10,681.08). [ 11 ] In our view, a fair reading of the motion judge’s reasons leads us to conclude that he disagreed with the submission that either a cost award on a solicitor and client basis or on a Class 4 basis was appropriate in this case.

Given that the husband was seeking an uncontested divorce and costs only if contested, it cannot be said that the motion judge’s rejection of solicitor and client costs or costs on a Class 4 level was an inappropriate exercise of discretion on his part. In fact, the appropriate tariff in the circumstances would have been Class 2, at the highest, resulting in an award of $4,775 inclusive of the petition and the motion which resulted in the

summary judgment. On that basis, $10,000 on an all-inclusive basis was clearly costs “at an elevated level”. [ 12 ] In the result, the appeal and the cross appeal are dismissed. Since success is divided, each party will bear its own costs. CJM JA JA