Court Sanctions Family Lawyer Who “Sandbagged” Opposing Counsel
Several months ago we described the various Ontario courts in which family law matters can be heard The family courts and rules – The basics We discussed that in some jurisdictions in Ontario where there is no Unified Family Court in place, certain family law matters can be dealt with by either the Superior Court of Justice or the Ontario Court of Justice – but not both. In other words, procedurally a single matter cannot be heard in two different courts at the same time (and there are specific rules to prevent this from happening, for example by imposing a stay on one of the two simultaneous proceedings).
The case of Sambasivam v. Pulendrarajah demonstrates the principle that neither litigants, nor their counsel, are entitled to exploit this dichotomy in the court system for their own advantage, and more importantly that family lawyers are duty-bound to refrain from “sharp practice”.
The parents in the case had married in 2009, but had separated three years later. They had a two-year-old daughter together. In September of 2012 the mother commenced support and custody proceedings in connection with the daughter in the Ontario Court of Justice, and sought an order to have the child apprehended and returned to her. However, that matter was dismissed since the parties had later attempted to reconcile.
Those efforts were unsuccessful, and at one point the mother refused to let the father see the child at all. He then commenced his own application in the same court (the Ontario Court of Justice) to get the matter resolved. Then he took matters into his own hands: he picked up the child from daycare one day, but did not return her to the mother.
Over the following two days, the mother’s lawyer and the father’s lawyer communicated with each other frequently; through her counsel the mother consistently asked that the daughter to be returned to her. The husband’s lawyer advised that he would shortly be bringing the matter before the court to have it resolved.
Notwithstanding those events, the mother’s lawyer – without giving notice to father or his counsel – obtained an order from the Ontario Superior Court of Justice for the child to be returned to her, enforceable by the police, as well as for a temporary restraining order against the father. This meant that the mother’s lawyer had obtained an order in one family law court, even though there was already an application relating to similar issues lodged with the other court which was scheduled to be heard a few days later. Technically the mother was legally entitled to do this; however, the key problem was that the lawyer had failed to advise the other side of the move, and moreover had failed to advise the new court of the prior proceeding, of the upcoming court date, of his ongoing (and very recent) communication with the other side’s counsel. In the words of the court, the mother’s lawyer had “sandbagged” opposing counsel.
The order was carried out that same day: the child was apprehended with police in attendance and was placed in the mother’s care.
The father’s lawyer was naturally outraged, and wrote an email to the mother’s lawyer to that effect, copying the Law Society of Upper Canada. The father and his lawyer argued that the mother and her lawyer should fully indemnify her for the costs of the court appearances.
The matter was brought before the court again. On the one hand, the court did acknowledge that the husband’s lawyer was in a professionally challenging spot; however, it observed that he had failed to take responsibility for his lapse in judgment:
This was a difficult case. His client was undoubtedly anxious and pressing him to do something immediately to have her child returned to her. He was not satisfied with [the mother’s lawyer’s] response to his requests to have the child returned to his client. He demonstrated in his correspondence a desire to resolve the matter without litigation. He showed considerable commitment to his client by cancelling a trip to Bavaria to deal with this matter. I had less sympathy for [the husband’s lawyer] after he asked to make direct submissions in court. He attempted to minimize and rationalize his conduct.
Specifically, the court took umbrage at the mother’s lawyer’s failure to notify opposing counsel, which it felt demonstrated “poor judgment in exercising his professional obligations.” It went on to say:
This court would be much more sympathetic to [the mother’s lawyer] if he had just said that he had made a mistake in judgment in the heat of emotional litigation. The arguments submitted by [the mother’s lawyer] informed the court that at a very fundamental level he doesn’t appreciate that what he did was wrong. The objective of this exercise is not to punish [the mother’s lawyer] and I regret any embarrassment the publication of this decision may cause him, but it is important to send a specific message to [the mother’s lawyer] and a general message to the public that this is not the way family law is to be conducted, and in the rare cases where counsel act this way, the court will voice its disapproval and impose costs consequences. It is essential that family law litigants and counsel have confidence that they will be treated fairly during a difficult process.
Concluding that the mother’s lawyer had an obligation to let the father’s lawyer know of the tactical move, the court wrote:
“It is disappointing when the court sees counsel engage in sharp practice. It only feeds into the skewed perception that the public has of family law lawyers. It undermines the good work that family lawyers do. Family law cannot be practised this way and it is incumbent on the court to show its disapproval.”
First of all, the court concluded that the mother herself was not on the hook to the father for the actions of her counsel. However the court found that the mother’s lawyer should personally pay the costs of his own client’s opponent, i.e. the father’s costs in the amount of $1200.
For the full text of the decision, see:
Sambasivam v. Pulendrarajah, 2012 ONCJ 711 http://canlii.ca/t/ftssc