Lawyer to ask for re-issue of critical judgment

An Ontario Court of Justice judge has criticized a lawyer for picking up his “client’s cudgel” and displaying “profoundly disappointing” behaviour towards his opposing counsel.

Ostafichuk v. Iaboni had considered whether the court had the jurisdiction to deal with custody and spousal support after Roman Botiuk’s client, Michael Ostafichuk, filed a separation agreement. Ostafichuk lost the case.

In written costs submissions, Botiuk attacked opposing lawyer Daniel Simard, who was representing Ostafichuk’s former partner Cynthia Iaboni.

Botiuk’s submissions said: “He took this on a contingency basis and now that it appears as if he will not be able to correct [sic] on any kind of contingency fee, he is forced to scramble to find a way to try to pick up some kind of money somewhere.”

The costs sought by Iaboni, he wrote, were “unreasonable and if anything, an indication of bad faith on the part [of the] . . . respondent’s solicitor . . . who’s definitely trying to recover some kind of fee for himself which, quite frankly, is not the applicant’s problem.”

Justice Robert Spence’s costs decision, released on Monday, acknowledged that family law cases are often accompanied by high stress levels.

A significant number of litigants are unrepresented and in those cases it was understandable that some behaved “inappropriately.” He added:
However, when litigants are represented by counsel, it is expected that this kind of behaviour will not be present, certainly not on the part of counsel themselves.

Therefore, it is profoundly disappointing when a lawyer acts as Mr. Botiuk has done in his costs submissions. When one lawyer accuses a colleague of acting in bad faith, as Mr. Botiuk has done, he had better be 100 per cent certain that such is the case.

Here, without any justification whatsoever, Mr. Botiuk made a decision to accuse Mr. Simard of acting in bad faith, perhaps on the theory that the best defence is a good offence.

In doing so, Mr. Botiuk has unfortunately picked up his client’s cudgel, and entered into the fray in a manner which was entirely uncalled for. He had a duty to act professionally, a duty which he unfortunately breached.

Simard’s actions were “entirely without reproach,” he added.

He ordered Ostafichuk to pay near full costs of $8,000 but said Botiuk’s conduct had not fed into the decision.

Botiuk told Legal Feeds he might have written the submission “in haste,” and had used an international transcription service.

“Mr. Simard was a little insulted by it. You can’t work on a contingency basis in family law,” he said.

Simard confirmed he did not take on the case under a contingency arrangement. "That's unlawful in family law," he told Legal Feeds.

He added: “I was taken aback by the nature of the submissions and the fact that he wasn't really presenting legal arguments as I thought he should've been.”

Botiuk said he had delivered a revised costs submission, in which the offending paragraphs were removed, into Spence’s hands before the decision was released.

However, Simard maintained the revised submission still contained references to him acting in “bad faith.”

It is likely this second submission was lost in the “mountain of material” related to the case, Botiuk said. He plans to ask for the decision to be re-issued.

“Appealing the decision is an immense bother but I do not think I can let what essentially amounts to scathing and inaccurate criticism and what seems like something very close to a personal attack on me stand. It is more costly to not appeal the matter,” he said.

Update: 5:13 pm Comments from Simard added.

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