May 2, 2019

Family Lawyer Ordered to Pay Special Costs for Inaccurate Drafting of Order

Svederus v. Engi, 2019 ABCA 155 (CanLII)

In an interesting case from the Alberta Court of Appeal, the Court awarded special costs personally against a family law lawyer, who failed to accurately draft a court order, causing confusion and prejudice to the father involved in the case. Svederus v. Engi, 2019 ABCA 155

The case began with a mediated settlement between the parents for equal shared parenting of their children. A year into this regime, the child’s mother appeared in chambers, with counsel, alleging urgency and requested an order for a change in custody to primary residence with her. The Court described the mother’s evidence as “raising the spectre of an unwholesome atmosphere” and suggested that an “interim, without prejudice, temporary order” be made, pending a short adjournment to August 10, to provide time for the unrepresented father to file affidavit material. The Court also ordered some weekend parenting time for the father. The father’s approval of the order was dispensed with.

When the matter came back to chambers, the mother’s counsel took the position that the initial chambers order awarded primary residence to his client and the judge was precluded from revisiting that issue.

At the hearing, mother’s counsel said:

“it is clear that what has been ordered is, in fact, primary care with my client. I do not know that there is any way around that.”

The second chambers judge did not have a transcript of the proceeding before the first chambers judge, but relying on the entered order and mother’s counsel, acceded to his claim that primary residence had already been established. He did order parenting time for the father.

On appeal, the Court emphasized counsel’s obligation to fairly and accurately draft orders that reflect what the Court has ordered. In this case, the entered order read: “The children shall remain in the Applicant’s primary care until further order of the court”. The Appeal Court confirmed that the order pronounced was not captured by the language used by mother’s counsel.

Notably, the Appeal Court remarked that at the appeal hearing mother’s counsel continued to argue that his order was accurate. He argued that “temporary” and “interim” were synonymous, a proposition rejected by the Appeal Court, who said that omitting the word “temporary” and the August 10 time limit was of significant consequence.

Allowing the appeal, the panel next considered the appellant’s request that special costs be paid by mother’s counsel. The Court agreed, and ordered counsel to pay costs of $2,000 to the father. Counsel’s insistence on appeal that his order was accurate was but one factor for the court to consider. More egregious was counsel’s position that despite reviewing the transcript he blamed the court clerk at the first hearing for his error.