FAMILY LAW LAWYER ORDERED TO PAY COSTS PERSONALLY

GUEST POST

BY Georgialee Lang

Arbitrator and Appellate Counsel, Litigation Strategist and Mediator

 

FAMILY LAW LAWYER ORDERED TO PAY COSTS PERSONALLY

 

Practicing family law is difficult enough without having to be wary of opposing counsel’s wily tactics. One of the cardinal rules of litigation is to provide notice to opposing counsel (or to an unrepresented litigant) of any steps you intend to take in court to pursue your client’s claims. To proceed without notice, also called “ex parte”, ought to be a rarity, particularly in the emotionally charged dynamics of a family law proceeding.

Toronto lawyer and former 2010 mayoralty candidate, Rocco Achampong, was handling a high-conflict custody matter that resulted in a judge ordering him to pay costs of $1,200.00 to his client’s husband for “sharp practice”. Such an order is extremely rare and only made when a lawyer’s conduct has been egregious.

The case started with Mr. Achampong’s client, who was living in the family home, obtaining an ex parte order for custody of her two-year-old daughter from the Ontario Court of Justice. That action resulted in her husband bringing a cross-motion for the same order, however, the parties talked through matters and decided to reconcile. All court action was terminated and the temporary custody order in favour of the mother was vacated.

Their reconciliation, however, was brief and ended after police were called to the home for an alleged incident of domestic violence. Promptly thereafter, the father brought another application to court seeking custody of his child and alleged that he and his wife had previously agreed they would share custody, but she had reneged on their oral agreement. After filing the application but before he obtained a fresh court order, he went to the child’s daycare and brought the child to his home.

This triggered a landslide of emails, letters and telephone correspondence between the parent’s respective lawyers, all of which adopted a conciliatory tone as the lawyers made efforts to resolve their clients’ problems without further court action. Different resolution options were canvassed including a 4-way meeting with clients and counsel, a mediation session, or an expedited return to court to have a judge assist.

However, while father and his counsel, Mr. Schuman believed their negotiations were bearing fruit, Mr. Achampong was hurriedly preparing court documents, while lulling opposing counsel into believing that the only issue between them was the selection of a mediator. 

In the meantime, father’s counsel had obtained an expedited hearing date as well, as a back up, and delivered his application documents to Mr. Achampong.

Despite this, Mr. Achampong obtained a custody order from the Ontario Superior Court of Justice, a higher court in Ontario with the same jurisdiction as the Ontario Court of Justice to make child custody orders. 

He did all of this without notice to opposing counsel, and without advising the judge that a new hearing date had already been secured in the lower court. Neither did he tell the Court that as recently as that morning, he had been involved in ongoing settlement discussions with father’s counsel.

Mr. Schuman was furious with the betrayal and reported Mr. Achampong to the Law Society. His client then brought an application for costs against Mr. Achampong personally. The Court made the following observations:

“Mr. Achampong never advised Mr. Schuman that he was wasting his time in the Ontario Court of Justice since his intention was to have the case heard instead in the Superior Court of Justice. He had an obligation to do so. Even if his client instructed him to proceed in the Superior Court of Justice (likely the case) and not to immediately advise Mr. Schuman (this is unknown), he cannot hide behind the excuse of client instructions. It was his obligation to let Mr. Schuman know that he would be proceeding in a different court, so that Mr. Schuman did not prepare needlessly for a case that would be stayed.

Mr. Achampong demonstrated poor judgment in exercising his professional obligations to Mr. Schuman on October 12, 2012. It is apparent from a review of the correspondence of counsel on that day that they were discussing urgent mediation to try and resolve the temporary issues. Mr. Schuman was taking steps to expedite this process. While Mr. Achampong asked for his client to be able to speak and see the child, there was no indication that he would be immediately going to court to obtain relief. It was certainly reasonable for Mr. Schuman to believe from the correspondence that the process would be mediation first, and if the case was not adjourned, that the temporary motions about parenting arrangements would be argued on Tuesday, October 16, 2012, in the Ontario Court of Justice.”

Mr. Achampong compounded his ethical breach by arguing before the Court that he had done nothing wrong. Another lesson learned. Best to fall on one’s sword than to justify improper behavior. The costs order is miniscule compared to the embarrassment of the national publication of his breach of professional ethics.

My guess is that in his zeal to have his client’s child returned, he forgot about his professional obligations as an officer of the court. In my view, no client’s case is worth a breach of ethical standards.

 

Do You Need to Prove 'Ouster' in Order to Make a Claim for Occupational Rent in BC?

Karen Redmond

Family Law Lawyer

Family Law Mediator

The Oxford Dictionary defines ouster as:   ejection from a property, especially wrongful ejection.  In the context of family law, it means that one person has been tossed out of the family home forcing them to live elsewhere.  In these situations, the person having been tossed, often wants to collect money from the ‘tosser’, and this is called occupational rent.  The case law has been relatively consistent about what is required in order to make a claim for occupational rent, and we would typically tell our clients that they had to prove they had been ‘forcibly ejected’ in order to support a claim for occupational rent.   

In McFarlen v. McFarlen, 2017 BCSC 1737,  a recent decision of Mr. Justice Jenkins released September 28, 2017 the finding of the court was that it was not necessary to prove that a party had been ousted in order to succeed with a claim for occupational rent.  The McFarlen’s were married for only two years but had lived together for 15 years prior to their apparently ill-fated nuptials.  They were both 53 at separation and did not have children together.  The central issue in the case was the claim by Mrs. McFarlen that her husband should pay occupational rent, because he had lived in the former family home since the date of separation, up to and including the eventual sale.  The issue was, had she been outsted, and more particularly, if she had , did she have to prove it in order to make her claim? 

Mr. Justice Jenkins reviewed the oft cited case of Ross v. Ross, 2013 BCSC 1716 which clearly lays out the principles applied in cases where claims for occupational rent were made.  At paragraph 47 of Ross:

“From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:

1.     Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.

2.     The remedy is exceptional and should be used cautiously.

3.     The following factors, where relevant, are appropriately considered:

·        The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good, at para.90)

·        Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16--17; Wilgosh at para.108).

·        If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106; Good at para.90, and Peltier at para.16)

·        Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier, at paras. 16-17; Wilgosh at para. 106)

·        Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). ….

·        Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17)

·        Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).

4.     The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.

And continuing at paragraphs 48 through 50, Justice Verhoeven wrote:

“[48]      A similar list of considerations is set out in Higgins v. Higgins (2001), 19 R.F.L. (5th) 300, at para. 53 (S.C.J.), and is regularly applied in Ontario. Higgins expressly states that ouster is not required. Similar approaches are applied in Alberta, Manitoba, Nova Scotia and New Brunswick: Braglin v. Braglin, 2002 ABQB 816, at para. 3; England v. Nguyen, 2013 MBQB 196, at paras. 74-77; Carmichael v. Carmichael, 2005 NSSC 318, at paras. 49-64; Cripps v. Cripps, 2007 NBQB 2, at paras. 52-57.

[49]      Concepts of occupational rent derived from general property law may be inconsistent with modern family law. In England at para. 74, Johnston J. observed:

To focus on a consideration of "ouster" is to set the development of family law back to the "bad old days" when issues of conduct may have been relevant considerations to our courts. How a person came to be in possession of a jointly owned asset should be a lesser concern to the court. The effect of the period of occupancy should be the focus of the court's consideration in exercising its discretion in attempting to value a fair result.

[50]      On the approach used by the other jurisdictions, as I interpret it, the overriding question is whether occupational rent, as a discretionary remedy to be used cautiously, should be utilized in order to achieve justice and equity in all of the circumstances of the case. This approach appropriately places little if any emphasis on the question of fault or blame for the decision of one spouse or the other to leave the matrimonial residence.

In support of the proposition that ouster is not required in order to prove a claim for occupation rent, Mr. Justice Jenkins cited a line of cases including Shen v. Tong, 2013 BCCA 519; Piderman v. Piderman, 2015 BCSC 475; Hodel v. Adams, 2016 BCAC 910.  The Honourable Judge also reviewed a line of cases where the BC Supreme Court had recently found that ouster was in fact a condition precedent to a claim for occupational rent.  At paragraph 20 he concludes that a party is no longer required to prove ouster in order to support a claim for occupational rent:    

"[20] So, is “ouster” a condition precedent to a claim for occupational rent? The authorities suggest that this remains an open question. Based on my interpretation of the law in this province,         I accept that “ouster” is no longer a pre-condition to a claim for occupational rent measured by the cost of alternative accommodation. The statements by Verhoeven J. which have been adopted by McEwan J. in Piderman as well as the statement by Willcock J. in L.M.R v. J.F.R., 187 A.C.W.S. (3d) 775, support this interpretation. My reasoning is reflective of the opinions expressed by Verhoeven J. and McEwan J. in Ross, Piderman and C.M.L.S.- that the proper way to approach a claim for occupational rent is as a discretionary tool to achieve fairness. Such a conclusion is consistent with family law legislation including the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) and the FLA which are not premised upon “fault based” principles. If I have correctly interpreted the law in British Columbia, then a review of the claim can proceed on the basis of equity. If “ouster” is required, this issue would have to proceed to trial to determine whether or not there has been an ouster."

In this writer’s opinion, the courts will still look at ouster in examining the fairness and equity principles, but it is no longer a condition precedent to these types of applications.