Morelli Chertkow v. Ruiz

2005 BCSC 551 Morelli Chertkow v. Ruiz IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Morelli Chertkow v. Ruiz, 2005 BCSC 551 Date: 20050413 Docket: 37023 Registry: Kamloops Between: Morelli Chertkow Solicitors And Lavina Jean Ruiz Client Before: Master Hyslop as Registrar Reasons for Judgment Counsel for the Solicitor L. Ottem Lavina Jean Ruiz appeared on her own behalf Date and Place of Trial/Hearing: April 7, 2005 Kamloops, B.C. [1] This is a review pursuant to s. 70(3)of the Legal Profession Act, [SBC 1998] c. 9 ("LPA"), of the accounts of Morelli Chertkow ("law firm") rendered to their client, Lavina Ruiz (the "client"). The accounts that are under review are dated February 12, 2004, May 26, 2004 and July 28, 2004. These accounts are as follows: Account: Fees: Disbursements: Taxes: Total: Feb. 12/04 $1,340.00 $640.49 $210.99 $2,191.48 May 26/04 $700.00 $29.24 $103.55 $832.79 July 28/04 $980.00 $65.75 $146.70 $1,192.45 $3,020.00 $735.48 $461.24 $4,216.72 [2] The client paid the law firm a total of $3,100.00 (exhibit 2, tab B) which was applied against the accounts described above. The amount outstanding is $1,116.72. [3] The client's position is that the proceedings took too long, there is no final order, and that there is no custody order, either interim or final of her children. BACKGROUND [4] The client instructed Lori Ottem (the "lawyer"), a member of the law firm, to obtain custody of her children. The client was then separated from her husband, Mr. Ruiz, an American citizen, who was residing in Oregon, United States of America ("USA"). The client was residing in British Columbia, however, both she and the children had resided in the USA. Both children were born in the USA, and both were American citizens. The client was concerned that the children might be removed from British Columbia by their father, Mr. Ruiz, without the client's consent. She instructed the lawyer to obtain an order as quickly as possible to prevent the children's father from removing the children from British Columbia. [5] The client entered a fee agreement with the law firm, dated January 30, 2004, (exhibit 2, Tab A). In that agreement, the client instructed the law firm to commence a family law proceeding seeking: 1. a divorce; 2. custody of the children; 3. child support; 4. spousal support; and bring on an ex parte application for an order that the children reside with you, and that they not be removed from the Province. [6] The agreement called for the law firm to be paid " on a time spent basis, broken down into tenths of an hour." The lawyer's hourly rate was $200.00 and paralegal staffs' hourly rate was to be billed between $35.00 - $90.00 per hour. The disbursements were also described. At this hearing, the client did not dispute the disbursements, or the taxes assessed by the provincial and federal governments. [7] The agreement stated that the client would be billed periodically, and any accounts remaining unpaid for thirty days, interest would be assessed at 12% per annum, until paid. [8] The agreement permitted the lawyer to withdraw her services for several reasons, one of which was failure to pay the law firm's accounts. The client could terminate the lawyer's services upon written notice. [9] The agreement, amongst other matters, stated the following: Finally, we have enclosed for you some general information on family actions. We have set out some of the steps that are often taken in court proceedings. Not all of these steps may be required in your case. The total cost of the legal services we will provide will depend on such factors as what you want to have done, what needs to be done, and the amount of work I have to do to accomplish these things. The cost will also depend on the degree of urgency of each matter, the frankness with which disclosure is made by the other side and their cooperation in producing documents, the need for valuations of property and pensions, the need for interim application to Court, the number of documents involved and the degree of hostility between you and the other side. Because of all of these factors I cannot tell you what the total cost of your legal services will be. However, I will keep you advised of the amount of your account as the matter progresses. [10] The lawyer first met the client on January 29, 2004. The lawyer appeared before the court on February 2, 2004, and obtained an order. In that order, the children were to reside with the client until further order of the court, and the children could not be removed from the province of British Columbia, except with the consent of the client or an order of the court. The order also stated that the children could not be picked up from school or daycare by anyone other than the client, or anyone authorized by her. Finally, the order stated that a copy of the order be served on Mr. Ruiz, by serving his mother, and that Mr. Ruiz could apply to set aside the order on two days notice. [11] The first account covered all work from the initial first meeting between the client and the lawyer up to and including February 9, 2004. [12] After the order was obtained, the lawyer arranged service of Mr. Ruiz, of not only the order but all the material necessary to commence the proceeding, and the material in support of obtaining the order. Mr. Ruiz was served. [13] After the service of Mr. Ruiz, the lawyer negotiated with Mr. Ruiz. Mr Ruiz did not file an appearance to the proceedings. [14] Discussions took place between the client and lawyer as to Mr. Ruiz's employment history for purposes of imputing his income for child support. Discussions took place between the lawyer and the client relating to the debts that the client and Mr. Ruiz had, in particular an insurance premium to the Insurance Corporation of British Columbia that was being debited from the client's bank account for a vehicle that was no longer operable. The lawyer received instructions from the client to abandon her claim for spousal support and to send a proposal to Mr. Ruiz. The lawyer sent a proposal to Mr. Ruiz, together with a proposed order which included the client having custody of the children. This work is the subject matter of the second account. [15] Initially, there was no response from Mr. Ruiz and summer was approaching. Mr. Ruiz contacted the lawyer in June of 2004, proposing joint custody and proposing the children travel to Oregon to see him. The former was not acceptable to the client. The latter was acceptable, so long as there was a custody order in place. Mr. Ruiz sent a faxed copy of the order, signed by him, to the lawyer, but refused to return the original. The lawyer told the client that she had two options: take the matter before the court or wait to receive the original order. The lawyer sought further instructions and money from the client. At this time, a third account was sent to the client. The third account showed the amount owed by the client as $1,116.72. [16] The client considered seeking financial assistance from her First Nations Band. She claimed that she needed itemized copies of the accounts. I assume that means breaking down the cost of each item on the account. There is no evidence before me that these plans were communicated to the lawyer. The lawyer withdrew her services. [17] At the time the client contracted with the law firm, the client was working and had some funds from an insurance claim. At present, she is attending Thompson Rivers University ("TRU"), and in her fourth year of a teaching degree. Her band sponsors her only when she is attending university. The client stated that by next month she does not know how she will support herself and her children. DISCUSSION [18] The law firm's agreement was straightforward. The client, at this hearing, did not complain of its terms. The lawyer billed the account from time to time so that the client knew how her money was being spent. The lawyer kept the client informed as to the progress of her case. The client's real concern was that she hoped the issue of custody would be resolved so that the children could visit their father. The issue remains unresolved, and the client stated that her daughter particularly wished to see father. The client was emotional when she said this. The lawyer, in the agreement, warned the client that progress of this file depended on Mr. Ruiz, who for reasons of his own, refused to send back the signed order. The lawyer could have used the faxed order as evidence of Mr. Ruiz's position, but by this time the client was no longer providing funds to the law firm so the work could proceed. [19] The lawyer moved quickly to obtain the ex parte order. The first account was the largest of the accounts as it required the lawyer to start the proceedings, pay court fees, prepare an affidavit and other material to appear before the court. The balance of the accounts relating to attempting to obtain the custody order of the children for the client, who was understandably, was not prepared to allow the children to travel to United States until she had an order. [20] The lawyer then wrote the client stating that since Mr. Ruiz had not filed an appearance or statement of defence, that she was preparing material to proceed by way of desk order, estimating the additional cost. The lawyer received no further funds from the client so that the client's case could proceed. DECISION [21] The lawyer's charges for fees and disbursements were reasonable and necessary for the conduct of the client's business and to advance the client's interests. In concluding this, I have considered those factors in s. 71(4) of the LPA. [22] The law firm seeks $102.04 in interest pursuant to the terms of the agreement. [23] I find that the amount due to the law firm is $1,218.76.. [24] The client asks that she be permitted to pay the money by instalments pursuant to s. 73(1)(a) of the LPA. I asked how much she could afford and she stated $25.00 per month until September 2005. Given the financial circumstances of the client, I order that the client must pay to the law firm the sum of $25.00 per month commencing May 1, 2005, and payable on the first day of each every month thereafter, until and including September 1, 2005. If, by that time, the law firm and the client have not worked out a plan for payment, then the client must take out an appointment by September 30, 2005, for purposes of determining the payment of the balance of the account due to the law firm. If the client does not take out an appointment by September 30, 2005, then the law firm may seek the full amount from the client. COSTS [25] Pursuant to s. 73(2)(b)of the LPA, I fix costs at $150.00. "Master H. Hyslop as Registrar"