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Judge warns about meritless LSUC complaints against opposing counsel

|Written By Neil Etienne

An Ontario Superior Court judge had harsh words in a recent cost ruling for a family law litigant who “acted unreasonably” in pursuing continued litigation of his matter and filed an unsubstantiated complaint with the Law Society of Upper Canada against the opposing side’s counsel.

“Family law can be a nasty business — more often than not because of the parties, even though the lawyers usually get the blame,” wrote Justice Alex Pazaratz in his Oct. 2 decision in Scipione v. Scipione.

“Malicious or reckless personal attacks against a spouse’s lawyer must be discouraged,” he added.

“That sort of interference with the solicitor-client relationship strikes at the core of our justice system,” he continued.

Steven Benmor of the Benmor Family Law Group calls the decision a “wakeup call” for many aspects of family court.

“Judges have had enough of this for decades but they’re more vocal about it now,” says Benmor. “Judges generally do not write decisions on costs. If they do, they do not write such lengthy decisions on costs because otherwise cost decisions have very little precedential impact on future conduct by litigants. In this case, this judge said, ‘This really pisses me off, so I’m going to write something that is not only for the people involved in this case and the lawyers, it’s actually for the general public,’ because we are in an era where there are a lot of self-represented litigants who might feel they can pull this stuff.”

Toronto family lawyer Judith Huddart agrees the courts have reached a boiling point in dealing with bad blood.

“The frustration of judges hearing family law cases is starting to come through loud and clear in their judgments,” she says.

In particular, the judge’s comments about the applicant’s tactic of filing a law society complaint against the respondent’s lawyer during the proceedings illustrates not just bad faith but provides a window into what family court judges see lawyers and clients experience daily. Certainly, adversarial court proceedings can be nasty business, and Justice Pazaratz probably sees many of the family lawyers in his court working in a difficult, hostile, and accusatory environment.”

In April 2011, the court made an order for lump-sum retroactive child support payments, retroactive extraordinary expenses, and periodic child support against Benedetto Angelo Scipione following a lengthy trial that Pazaratz characterized as “predominantly unsuccessful” for him. Less than a year later, Scipione brought a motion to change the ruling. He sought to alter most support issues, rescind all arrears, terminate an open-ended spousal support order effective January 2014, and suspend a support deduction order made in 2011.

In August of this year, after three days of hearing that motion, the parties reached a settlement except on costs, an issue Pazaratz dealt with in his Oct. 2 decision.

According to Pazaratz, “For the most, part the applicant did not obtain the relief he sought.”

In turn, respondent Teresa Marina Del Sordo sought full indemnification for costs totalling less than $83,000 for having to defend herself and because the applicant acted in bad faith.

“So who got what they asked for? How did they conduct themselves in this litigation? And what are the cost consequences?” the judge queried in making his cost ruling.

“The applicant denies he acted unreasonably, let alone in bad faith,” he wrote in considering the issue. “However, I have little difficulty concluding that his actions in bringing and pursuing this litigation were unreasonable.”

Pazaratz ruled the respondent, who was seeking full costs based on how the applicant had conducted himself during the litigation, had offered two servable offers as well as a number of informal proposals in an attempt to stop or at least shorten any hearing process.

“In this respect there can be no doubt that the respondent consistently gave the applicant opportunities to bail out of an ill-advised motion. Her offers, both formal and informal, reflected a more realistic approach to settling this case and significantly reducing legal fees,” wrote Pazaratz, adding Scipione had also been untruthful about the circumstances involving a job loss and his subsequent request to reduce payments based on the loss of income.

Shelley Quinn of Quinn Family Law says that as a member of the executive of the Ontario Bar Association’s family law section, she often discusses “reasonableness” with her colleagues and notes counsel can play a big role in keeping acts of bad faith out of court.

“It’s an extraordinary finding . . . with a caution to the bench that if you and/or your client are going to take such unreasonable positions, then the clients are leaving themselves open to significant cost awards,” she says.

Quinn says the ruling should be a caution for lawyers to be counselling their clients to take a more reasonable position.

“I think the family law bar can be working on social change within our practice around reasonableness and how can we collectively work on this so lawyers are encouraging their clients to take a more reasonable position,” she says.

In the end, the court awarded the respondent the bulk of her costs less about $23,000. As part of his ruling, Pazaratz noted the need for scrutiny when litigants complain to the law society about opposing counsel. “Complaints to the Law Society alleging solicitor misconduct in a family court case are — or should be — completely independent of the dynamics and resolution of the court case itself. But scrutiny and caution is required where a family court litigant complains to the Law Society — not about their own lawyer, but about their spouse’s lawyer,” he wrote, suggesting the complaint “constituted one more effort to interfere with the Respondent’s ability to defend a meritless claim.”

  • Accountant

    Robert N
    I myself have filed complaints with the Law Society and Judicial Council about incompetent lawyers and judges. I am well aware the job of LSUC and JC is to protect lawyers and judges not discipline them. This should be a clue as to why lawyers are disappearing and disappearing fast.
  • CEO

    Robert Bitner
    Roberto Bitner
  • Atrocious behavior

    Cathie C
    Ms MaFralane how about Judges treating SRL as humans. How about going and seeing SRL in a US court and watch opposing counsel and the judges behaviors. Civil all around. Ont. has despite the LSUC notice of behavior of its lawyers against SRL, on it's website still engages in angry hostile behavior from lawyers and judges. If a lawyer or a judge is supposed to be better educated, and education once equated better manners, this is not always in play in Ont. courts.
  • Ms.

    Gloria Nardi-Bell
    Hi Marina

    I agree with you. I also think it's important to read the trial decision from 2011. GNB
  • Unethical conduct

    Cathie C
    The behavior of the judges in response to self represented needs to be investigated. I have read that some fell all lawyers are above reproach. Yet the LSUC itself has information to discourage lawyers from behaving offensively against self reps Then they deny. If we record the interactions the lawyers then have a bigger fit over this. The LSUC has those among itself that feel they are within their rights to be rude, not speak with the self rep. and that in itself is unbecoming a professional. When lawyers do this in the USA they have been fined for acting rudely to self reps. Unethical conduct. Judges being lawyers themselves seem to protect their bar not the rights of those in court.
    Thank you to the lawyers on here who are saying we the self repped have rights too. If you do not like the legal protest against the courts and truly value justice and not just an income. you will do the right thing.
  • Professor

    Julie Macfarlane
    Some comments from the perspective of my work on the National Self-Represented Litigants project.

    1. I am struck by the fact that the headline in this piece is not actually what the article is really about. I wonder if that was a ploy by the editors to get the attention of the Bar.
    2. Many SRLs experience hostility and rudeness from opposing counsel. We have to do better about this and dismissing complaints as meritless is not the way to handle this.
    3. The Bench and the Bar need to work together to address the challenges of dealing with so many SRLs. A few practical examples - allowing LSC counsel not to be listed as a lawyer of record, encouraging SRLs to seek out unbundled services locally, working with the SRL to make the matter more functional for EVERYONE in the courtroom
    4. Finally, reasonableness must be a factor in setting costs for everyone, counsel and SRLs alike
  • respondent

    Marina Del Sordo
    you should read the decision for cost before commenting on this article
  • when warranted

    Dave Warren
    Some counsel just bully self-reps. If a judge won't stop the breaches of the Rules of Professional Conduct, we have to protect the public. The Law Society should step in and complaints should be made. The bench thinks we have abandoned self-reps. Nothing could be further than the truth. We settle those that can be settled. When we really need the court's help, the court has abandoned the bar. We can't afford your case management follies and neither can the clients. Manage the bad lawyers and give us back our family court. The public deserves better.

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