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.”