In the recent case of Svederus v Engi, 2019 ABCA 155, the Alberta Court of Appeal made an award for costs against a divorce and family law lawyer personally for failure to adequately draft a form of order that considered the intent of the Justice in Chambers.
To give some history to this event, Mr. Engi and Ms. Svederus were engaged in a dispute about parenting time after a mediated separation. Although the mediated parenting arrangement had stood for about a year, the mother sought a change to the parenting arrangement on an emergency basis by attending morning chambers through her lawyer ("counsel") who I will not name here. The father attended the application, but did not have a lawyer at the time and asked for an adjournment until such time as he could properly answer the allegations of the mother. This led to a without prejudice order issued by the presiding Justice that the mother would have the children exclusively until the matter could be heard a few weeks later with both sides of the story before the Court.
What was ultimately filed at the courthouse was an order that said that the mother had primary care of the children until further order of the court (paraphrased). What is significant and worrisome about this form of order is two-fold: firstly, the order did not clearly specify that the order would be time limited and only in force until the matter was heard at the second hearing, and secondly, the status quo created by that order is something that the court has to consider in making any subsequent orders for parenting time.
On the first of the two horns of this dilemma, it's important to understand that the lawyer who represented the mother at the application was there against a self-represented litigant. That lawyer invoked a special rule in the Alberta Rules of Court that allows a party to draft an order and not get the other side's approval of the wording before it is filed [rule 9.4(2)(c)]. This was likely done because the father was not in any position, as a self-represented person, to understand the significance of the wording of an order and would potentially delay the filing of the order and its effect. The Court of Appeal came down pretty severely on this lawyer (which is why I won't name them) about their obligations as counsel to accurately draft the form of order in a way which represents not only the strict wording of what was directed in chambers, but also captures the true intent of the Justice who made the order. Here, counsel failed to adequately capture both the intent and the strict wording to give effect to the order of the Justice that the arrangement between the Mr. Engi and Ms. Svederus was to be a temporary one. The order was meant to encompass both a consideration for the safety of the children and for the right of the father to adequately represent himself before the courts and answer the allegations against him.
On the second horn of this dilemma was the status quo created by the order and how that affected the outcome of the second hearing a few weeks after this order was made. As a general rule, courts must consider the status quo created by any existing parenting arrangement. This is so because a child that is bounced around between households will have a hard time finding the stability they need to develop into a healthy adolescent/adult. Consideration of the status quo is in furtherance of the court's duties to consider the best interests of any child that is subjected to the family court's authority. What the Court of Appeal was wrestling with here was how to properly reprimand a lawyer for tacitly allowing a new status quo to be created by that same lawyer's failure to properly give effect to an order of the court. As an example of how that status quo plays out, the second Justice felt compelled to make an order that was more favourable to the mother because they believed they were chained to the status quo created by the original order.
When at last this matter was heard by the Court of Appeal, you can imagine their astonishment at the goings on at the chambers level because those judges has before them the entire record and transcripts. The Court of Appeal knew what had transpired and in making their judgment against counsel for the mother sent a warning to others that behaviour such as this would not go unpunished.
Given the circumstances, I would hazard that counsel for the mother was not conscientiously intending to thwart the purpose of the courts or to take advantage of the self-represented litigant and his lack of counsel. Likely, this lawyer used a precedent order and captured, as they thought, the real ambit of the order in what was eventually filed. I ascribe no fault or degree or misconduct on this lawyer, but it does remind lawyers and others of the risks of overlooking even the smallest details in drafting an order.
At the end of the day, you might win your or your client's application or case, you might get all the relief or remedies that were asked for, and you could do so promptly and with a lot of value delivered. However, as soon as you sit down at your desk to draft up that order, remember, CAVEAT POSTSCRIBOR, writer beware!