A legal bill of over $200,000 for a divorce case has dwindled to $50,000 after a Superior Court judge found a lawyer “lost focus” that her client wanted a quick resolution, not a big pay day from her wealthy ex-husband.“This lengthy and protracted litigation was not the right answer for this couple,” wrote Superior Court Justice Ellen Macdonald in her decision in the case involving Toronto sole practitioner Susan Garfin.
“It is incumbent on experienced solicitors to conduct what is, in effect, a cost-benefit analysis of every case,” said Macdonald.
An office administrator at Garfin’s law office tells Law Times the lawyer would not comment on the case, suggesting she was considering an appeal of the ruling.
Garfin, who has practised family law since 1983, went to the court to collect about $218,000 in legal fees in a case involving divorcing couple Nikolaos Mirkopoulos and Julie Crossen, both of Toronto. The bill covered work between Jan. 9, 2004 and March 28, 2007, according to Macdonald.
An alternate claim filed by Garfin was for fraud, collusion, and conspiracy.
Crossen and Mirkopoulos married in July 2001 and separated in August 2002, according to the judgment. Mirkopoulos is a “very successful businessman and is described by Ms. Garfin as being ‘exceedingly’ wealthy, with interests in valuable property and several corporations,” said the judge.
The judge noted that Crossen was “impecunious and in a state of very compromised health” during the litigation.
Crossen signed a retainer agreement with Garfin in September 2002 for work based on an hourly rate of $300, according to the judgment. An undated, further retainer was agreed to in June 2004 that raised the fee to $330 an hour.
Crossen terminated the retainer March 7, 2007, and signed a separation agreement - without legal advice or reading the agreement - March 30, 2007. The agreement included a lump-sum
support payment of $33,000.
Macdonald noted that Garfin said she didn’t bill monthly in the case because there was no money in her trust account to pay GST. But, the judge said, “this could not have been true because Ms. Garfin was retaining in trust, in increasing amounts, a portion of the $4,000 monthly spousal support that was being paid to Ms. Crossen, pursuant to an order by Justice [Victor] Paisley, effective September 30, 2003.”
In addition to claims for legal fees, disbursements, and GST, Garfin’s claims included nearly $218,000 as damages for fraud, collusion, and conspiracy; a series of declarations, such as one voiding the transfer of money or assets between Crossen and Mirkopoulos; and damages against Mirkopoulos for nearly $218,000 “for intentional interference with contractual relations between Ms. Crossen and Ms. Garfin,” according to the judgment.
Macdonald’s reasons included an analysis of factors from the 1985 case Cohen v. Kealey & Blaney, in which the Court of Appeal considered what’s applicable to an assessment.
In terms of the legal complexity of the case, Macdonald found that Garfin “lost sight of the fact that her client was in extremely frail health and that Mr. Mirkopoulos had the ability to meet the reasonable needs of a spouse, coming from a very short marriage.”
The judge found that Garfin “demonstrated responsibility but she was inconsistent in her availability to Ms. Crossen.” A number of docketed items could have been dealt with by a law clerk, she said.
“I find that Ms. Garfin was conflicted because she saw Mr. Mirkopoulos as a very wealthy person with seemingly endless resources to participate in the protracted litigation,” wrote Macdonald.
The judge also found that many of the costs Garfin claimed wouldn’t have been necessary if “extensive negotiations” took place after offers came in from Mirkopoulos.
Macdonald found that Garfin’s answer and counter-petition were “detailed and comprehensive.” But, she went on to write, “[Garfin] was blinded by her pursuit of Mr. Mirkopoulos, whom she knew to be very wealthy. By doing so, she lost focus of the fact that Ms. Crossen desired an early resolution because she wanted to get on with her life or, as she repeatedly put it, she ‘wanted her life back.’”
The judge found that Garfin “achieved good results on the interim interim [sic] support motion.”
Macdonald, finding that Mirkopoulos always planned to pay Garfin’s account after it was assessed, agreed with Crossen and Mirkopoulos’ belief that the legal fees were “excessive.”
“Ms. Crossen is particularly adamant that Ms. Garfin was motivated to maximize time spent in order to achieve the highest possible fee for herself. I agree with this statement,” wrote Macdonald.
On top of assessing Garfin’s final account, or alternative claims for damages, “with a blunt pencil at $50,000,” Macdonald dismissed her claims for fraud, collusion, and conspiracy; and found that Garfin’s claim for damages for intentional interference with contractual relations was not proven.
Macdonald also refused to declare that Crossen and Mirkopoulos colluded to defraud Garfin of her legal fees.
“The evidence is to the contrary,” wrote the judge. “Both Mr. Mirkopoulos and Ms. Crossen knew that there were outstanding legal fees owed to Ms. Garfin at the time of their settlement discussions. Mr. Mirkopoulos always took the position that he would contribute to Ms. Garfin’s legal fees after they were assessed.”
Counterclaims also were dismissed.
Law Times’ attempts to contact Mirkopoulos and Crossen were unsuccessful.