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Adam N. Black: A Finding of Bad Faith Seriously Affects Costs in Family Litigation

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February 24, 2022 • February 24, 2022 • 4 minute read • 13 Responses The conflict between divorced parents must always give way to the interests of their children. Failure to do so will almost inevitably have disastrous emotional and financial consequences. The conflict between divorced parents must always give way to the interests of their children. Failure to do so will almost inevitably have disastrous emotional and financial consequences. Photo by Getty Images/iStockphoto Files

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After five years of litigation, culminating in a 39-day lawsuit and compensation of more than $675,000, a father was finally able to mend his relationship with his five- and seven-year-old sons, despite their mother’s unremitting efforts to put it out. . the.

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The Ontario Supreme Court trial, which was one of the longest parenting trials in court history, highlighted the mother’s misguided campaign to get the children to reject their father.

With false allegations of physical and sexual abuse and reports to the police and various child protection agencies, the mother’s efforts seemed to know no bounds.

Immediately after the parents’ divorce in July 2016, the children had no contact with their father for thirteen months. In the five months leading up to the trial, the children had spent a total of nine hours with their father. During many visits to the father, the mother had instructed the children that there should be “no hugs and kisses” and that birthday parties with cakes were not allowed. Without control, the mother’s efforts would certainly have caused a permanent rift in the father’s relationship with his sons.

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After examining the evidence, Judge Heather McGee was left with one option: to immediately transfer primary care for the children to the father and give the father the decision-making authority.

Justice McGee recognized the importance of a relationship with both parents and established a parenting schedule to repair the damage and restore meaningful and healthy relationships. During the first 90 days of the parenting schedule, children are not allowed parenting time with the mother, with the exception of two 30-minute Zoom calls per week and up to ten hours in person per week, provided the visits are supervised by a childcare provider. and family therapist.

Thereafter, the mother’s parenting time will gradually increase, with the children eventually being equally in the care of each parent on a weekly basis.

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While the emotional cost of the conflict cannot be overstated, especially for the children, the financial cost of the process has been disastrous.

According to Judge McGee, the “family lawsuit has cost the parents on the order of $1.7 million, an amount far exceeding their personal savings and their equity in a jointly owned home.”

Based on his success at trial, the father filed for a $937,510 lawsuit. The mother resisted, stating that she had limited financial resources and would not have to pay the father more than $50,000.

Justice McGee disagreed. In what is likely a landmark family law dispute, the mother was ordered to pay the father’s costs of $677,610.

Winning the case alone was not enough to entitle the father to the costs.

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“Success alone is not a sufficient basis for a cost allocation, because the measure of success lies with the child. It is the child’s success that is the subject of the proceedings,” Judge McGee wrote.

Instead, she carefully considered the offers to settle each party made prior to trial — a yardstick courts use when deciding whether to award costs.

In this case, the judge’s ruling was even more favorable to the father than his initial offer, entitling him to pay costs. However, given the mother’s behavior, the analysis didn’t stop there.

According to Judge McGee, the mother “acted in bad faith in claiming to support the boys in a full and healthy relationship with their father, while taking deliberate steps to sever their sons’ affection, sense of security, and self while were with their father. She caused emotional damage to the boys.”

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In Ontario and other jurisdictions across Canada, a finding of bad faith seriously affects costs in family litigation.

Although the threshold for establishing bad faith is high, Judge McGee had little difficulty in coming to that conclusion in the case before her.

“An ex-spouse engaged in a lawsuit to win at all costs chooses to be equally responsible for the resulting lawsuit costs on the other side as he is for his own fees,” she noted, adding that awarding costs discourage unreasonable litigation.

In what should become a mantra for those involved in parenting disputes, Justice McGee noted that a “successful lawsuit is a parent who respects a child’s continued attachment to his or her other parent while disconnecting from that parent as a parent.” former partner.”

The conflict between divorced parents must always give way to the interests of their children. Failure to do so will almost inevitably have disastrous emotional and financial consequences.

Adam N. Black is a family law partner at Torkin Manes LLP in Toronto.

ablack@torkinmanes.com

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This post Dad awards more than $675,000 in costs after epic five-year battle over children

was original published at “https://financialpost.com/personal-finance/family-finance/father-awarded-more-than-675000-in-costs-after-epic-five-year-fight-over-kids”

Categories: Finance

Author: Frederick Sullivan

Hannah Sullivan: As a seasoned journalist, Hannah's blog provides hard-hitting analysis and in-depth reporting on major crime stories. Her thorough coverage and fearless reporting make her a trusted voice in the field.