BC Special Costs: $35,000 because you abused the Lawyer and were Rude to the Judge

“A member of the Bar of British Columbia does not agree to abuse from the opposing party when he agrees to represent a client” were the wise words of the BC Supreme Court’s Honourable Justice Watchuk on New Year’s Eve of 2013.

This judgement is a breath of fresh air for family lawyers in BC. Family Law can be extremely acrimonious and this case is a prime example of what family lawyers such as myself have to deal with regularly.

Challenges of Being a Family Lawyer

Some of our toughest cases happen when we have to deal with an unrepresented litigant. I think I speak for all family lawyers when I say it is our wish to deal with represented litigants because unrepresented litigants often have the wrong view regarding lawyers in general and how lawyers are most often trying to ‘trick’ or ‘bully’ them. Not all self-represented litigants are unreasonable, but the Court’s process can be stressful and confusing for those not trained in law.

Family lawyers are expected to be objective and never emotional or combative when a litigant repeatedly attacks or even abuses them. The principle is logical but in practice, it is difficult to do. It is difficult when you are under constant fire by a litigant and are personally attacked when you are trying to do your job. It is challenging not to react sometimes. If we do, we will be subject to complaints through the Law Society of British Columbia which says that no matter what the litigant does to us, if we say or do anything personal in response, we will risk being disciplined and sometimes involved for months and years with the Law Society which is extremely stressful and draining at points. This can lead to extreme anxiety and pressure to the point that many family lawyers have quit family law or the legal profession altogether.

The Incredible Story of a Litigant’s Abuse of his Spouse, his Spouse’s Lawyers and the Court System.

The case of A.S.P. v. N.N.J. dealt with the mother’s Application for special costs against the father. Special costs are rarely granted. To obtain special costs, the mother had to show that the father’s behaviour was deserving of rebuke based: reprehensible conduct or conduct that is deserving of reproof or rebuke: Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242, 119 D.L.R. (4th) 740 (C.A.).

The Court reproduced an email from the father asking the judge to remove herself from the case:

1. Being seized has consistently failed my children.  Plus the matter is now so complicated legally and so prejudicial to all parties and even the court – it is better not to appear before the seized judge.” (E-mail from [father] to BC Supreme Court Registry dated October 26, 2012).
2. The father repeatedly asked the judge to remove herself from the case through his correspondence with the Court and the mother’s lawyers.

The Court reproduced the following emails from the father attacking the mother’s counsel and said this:

1. On many occasions he has re-sent the same correspondence more than 40 times over the course of a few minutes, deliberately occupying the counsel’s time and increasing the legal cost to the [mother]. 
2.  “I highlighted the relevance “piranha”.. .just you… opportunist, exploitative, and after a diamond ring… .a greedy family lawyer!!!!  Maybe it’s something more intrinsic to your person Of course you are going to show this in court…. I want you to.  It is all going to be public anyway… .” (E-mail from [father] to counsel for the [mother] dated March 1, 2012, at 3:20 pm).
3. “What did I tell you?  Daltrop is not to correspond.  If one more letter with his signature comes forth, matters will go forward as I warned.  You are free to sign.  Daltrop is not.   (E-mail from [father] to counsel for the [mother] dated May 9, 2012, at 4:19 pm).
4. “Put this down as one to remember when we explain to the kids what happened on Father’s day 2012” —we have a lawyer who gets his Jewish new year, but the father doesn’t get father’s day or  acess [sic]” (E-mail from [father] to counsel for the [mother] dated May 18, 
5. (d)  “letters from Daltrop will not be read anymore.  Send me another one, and I figure the best way of getting a personal no-contact order is for me to turn up at Daltrop’s house in the evenings and knock on his door until he himself agrees no contact makes sense.” (E-mail from the [father] dated February 14, 2013, at 1:53 pm).
6. (e)  “Give my regards to Sarah” (E-mail from the [father] dated February 14, 2013, at 4:52 pm) – It is noted that the [mother’s] counsel has a daughter named Sarah

The Court said the following about the father’s conduct during the Court proceedings:

1.  In the trial, I first mentioned the necessity for respect and civility to the father.  I then reminded him of it.  I stopped the trial on at least two occasions when those instructions were wholly disregarded.  I explained further that civility and respect for the mother and her counsel not only assisted the court proceedings but were fundamental to the ability of the process to achieve a result that was in the best interests of the children. 
2. The conduct of the father has consistently been rude, inflammatory, derisive, threatening, disrespectful and insulting to the mother, her counsel and the court process.
3. A member of the Bar of British Columbia does not agree to abuse from the opposing party when he agrees to represent a client.  The law firm of counsel for the mother was subject to nothing short of abuse in the email correspondence which has come to the attention of the court.

Special Costs Awarded at $35,000

The Court in conclusion awarded special costs against the father in the amount of $35,000. The case was heard over more than 26 business days and $35,000 is likely only a fraction of the legal fees the mother spent on counsel. The Court took into account that the father did not have the ability to pay (likely) hundreds of thousands of dollars in special costs, but the lesson from this was made crystal clear:

Lesson Learned from this Case: Be civil, objective and respectful to those around you including our Honourable Courts and judges who have an incredibly challenging and hard job. This type of job includes listening and observing acrimony and tension to do justice. 

For more information or suggestions, please contact us at 604-974-9529 or email [email protected].