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  • Michelle Kooy

Special Costs for Denigrating Spouse's Lawyer

An interesting case came out recently with special costs that is worthy of a mention as it involved something that happens quite frequently in family law. One party in that case was disparaging their spouses lawyer to the spouse. It is relatively common for a person in a family law proceeding to make negative comments or even make unfounded law society complaints about their spouses lawyer. Successful family lawyers expect this and have a thick skin. What is not usually discussed is that this type of communication is often intended to intimidate or intrude upon the relationship between a spouse and their lawyer. Especially in family law, due to the sensitive nature of the material, the confidence and trust between lawyer and client is crucial.

A key comment from the court was:

“…The course of lengthy litigation is arduous, with good and bad days. On a bad day, the unique relationship of counsel and client may be tested.”

This is absolutely true. A litigation file can be an emotional roller coaster. There will be ups and downs and clients feel the downs in a very impactful way.

The Claimant in this case asked that the Respondent be penalized through a costs award due to these comments. In family law matters, costs are generally awarded to the successful party. In this case, the Claimant was substantially successful and the court was prepared to grant the Claimant costs of the matter. However, the Court went even further and awarded partial special costs.

Special costs is an award that more or less reimburses requires one spouse to pay the other's legal fees. Special costs may be awarded where the opposing party engaged in reprehensible conduct in the course of the litigation which includes acting with an improper motive. The Court found that it was reprehensible for the opposing party to attack the Claimant’s choice of counsel and relied on both the complexity of the matter, the Claimant’s counsel’s effective representation and the disparaging emails from the opposing party to award partial special costs.

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