Judge lectures bar on proportionality duties in family law

Lawyers need to do a better job of accounting for family law litigants’ means when choosing how to proceed with a case, a Superior Court judge has ruled.

In Principato v. Principato, Justice Robbie Gordon was ruling on costs in a case involving acrimonious matrimonial proceedings between Leanne Principato and David Joseph Principato. On April 26, 2012, David brought a motion for various heads of relief, but another judge, Justice Francine Van Melle, determined there wasn’t sufficient urgency to hear the matter before a case conference and reserved the issue of costs. Gordon then heard motions by both parties with respect to custody, access, a proposed assessment, and child support after the case conference failed to produce an agreement. In his decision last week, he considered submissions on costs.

But in doing so, he diverged into the issue of proportionality in family litigation, which he said has grown in importance as concerns over the affordability of legal services mount.

“Notwithstanding the litigation between them is essentially in its infancy, that is, it has progressed through only a case conference and the initial motions described above, the parties have incurred collective costs in excess of $92,000,” wrote Gordon, who noted the parties “are of very limited means” and that the proceeds from the sale of the matrimonial home amount to less than $100,000.

“Those costs have been incurred to deal with issues which I accept are important to the parties, but which are not particularly complex. When I consider proportionality in the context of the means of the parties, I must seriously question whether the motions brought forward in this case required the filing of lengthy facta, casebooks, and affidavits of the length and detail contained in these motion materials. The manner in which this relief has been sought is completely out of proportion to the litigants’ resources.”

While Gordon didn’t specifically fault either Leanne’s counsel, Shawn Campbell, or David’s representative, Aaron Franks, for the high costs, he reiterated the need for counsel to engage in a proportionality analysis.

“Moreover, I would suggest they have a professional obligation to conduct litigation in a manner which reflects the means of the client and the issues which present,” he wrote. “I accept that some clients will wish to proceed in a manner that does not reflect this concept of proportionality. Perhaps that is what happened in this case. When that happens, counsel will have to reflect upon whether they wish to act for a client who will not follow their advice.”

With respect to the Principatos, Gordon ordered David to pay costs of $4,000 in relation to the April 26 motion. When it came to a set of other motions returnable on Oct. 4, 2012, he ordered that each party should bear its own costs given the divided success.

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