Law Times

Law Times • OcTOber 19, 2015 Page 3 www.lawtimesnews.com Judge warns about meritless complaints against opposing counsel BY NEIL ETIENNE Law Times n Ontario Supe- rior Court judge had harsh words in a re- cent cost ruling for a family law litigant who "acted unreasonably" in pursuing con- tinued litigation of his matter and filed an unsubstantiated complaint with the Law Society of Upper Canada against the op- posing 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 per- sonal attacks against a spouse's lawyer must be discouraged," he added. "That sort of interference with the solicitor-client relation- ship strikes at the core of our justice system," he continued. Steven Benmor of the Ben- mor 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 Ben- mor. "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 deal- ing with bad blood. "The frustration of judges hearing family law cases is start- ing 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 com- plaint 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 dai- ly. Certainly, adversarial court proceedings can be nasty busi- ness, and Justice Pazaratz prob- ably 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 retro- active child support payments, retroactive extraordinary ex- penses, and periodic child sup- port 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 sus - pend a support deduction order made in 2011. In August of this year, after three days of hearing that mo- tion, the parties reached a settle- ment 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 to- talling 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 conse- quences?" the judge queried in making his cost ruling. "The applicant denies he acted unreasonably, let alone in bad faith," he wrote in consider- ing the issue. "However, I have little difficulty concluding that his actions in bringing and pur- suing this litigation were unrea- sonable." Pazaratz ruled the respon- dent, who was seeking full costs based on how the applicant had conducted himself during the litigation, had offered two serv- able offers as well as a number of informal proposals in an at- tempt 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, re- f lected a more realistic approach to settling this case and signifi- cantly reducing legal fees," wrote Pazaratz. Shelley Quinn of Quinn Family Law says that as a mem- ber of the executive of the On- tario Bar Association's family law section, she often discusses "reasonableness" with her col- leagues 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 unreason- able positions, then the clients are leaving themselves open to significant cost awards," 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 liti- gants complain to the law so- ciety about opposing counsel. "Complaints to the Law Society alleging solicitor misconduct in a family court case are — or should be — completely inde- pendent of the dynamics and resolution of the court case it- self. 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." The circumstances in regards to that issue were also unusual, according to Benmor. "Typically, what happened in this case doesn't happen public- ly. In the average case, the com- plainer, 99 per cent of the time, files the complaint after the case is over so, the [lawyers] end up having to lose sleep and go on medication because they've got no way of really dealing with this. Most judges don't want to hear about that . . . but in this case, [the complaint] was inside of a court proceeding and it was in front of a judge who cared." LT NEWS Whether we're advising a multi-million dollar enterprise or an entrepreneur who aspires to be one, our experts work closely with you to develop optimal solutions that meet all your audit, tax and advisory needs. With offices from coast to coast, trust the professionals at Collins Barrow for the objective, actionable advice you need to maximize opportunities in virtually every area of your operations. Close the big deals with Collins Barrow. 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