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Stay of Husband’s Proceedings Confirmed, Despite Wife’s Bad Faith Divorce Petition

Stay of Husband’s Proceedings Confirmed, Despite Wife’s Bad Faith Divorce Petition

A few weeks ago, I wrote about the potential ramifications of “court shopping” (reference Family Law Matter?   Pick a Court – and Pick a Province, Too  http://bit.ly/IzRNIp ) meaning an approach by litigants to gain tactical advantage by deliberately commencing family law actions or applications so as to ensure that their matter is heard in a particular court.

This week, I am writing about a case that illustrates a slightly more subtle twist: the ability of one party to halt the other party’s application in another family court, in order to force all related issues to be heard together at one time, and in one single court.

In Abdul-Razak v. Ghawi, the couple separated just a few weeks ago, on March 7, 2012. The mother took their two children and moved to Goderich, Ontario to live with her extended family. The father stayed in Toronto and commenced an action there in the Ontario Court of Justice on March 21, 2012, asking for custody or joint custody.

About five days later, the mother issued a petition for divorce in the Superior Court of Justice, asking for equalization of net family property, child custody and spousal support. More importantly, she brought the petition in Goderich, rather than Toronto (where the children normally reside).

Under the governing procedural rule, found in the Children’s Law Reform Act, the divorce petition by the wife had the effect of immediately halting or “staying” the father’s application for custody, except where a court has expressly given him its consent to proceed. This rule ensures that all of the family-related issues – meaning the divorce, equalization, custody, and support – are heard together in one court.

The husband accordingly applied for the court’s permission to continue his application; the mother opposed, preferring that all of the issues be heard together in the Superior Court.

In rendering its decision, the court pointed out that the Children’s Law Reform Act does not provide any guidance on when a court should grant leave to applicants like the father, in order to allow him to continue his custody application once a divorce action has been commenced.

However, the Courts of Justice Act, which also guide’s the court’s considerations, merely states that a “multiplicity of legal proceedings shall be avoided.” The court concluded that this was the predominant consideration, although there were also secondary factors such as prejudice to the father or the children, the length of time between the father’s application and the wife’s divorce petition, and bad faith on the part of one of the parties.

On that latter point: the court concluded that here the mother’s decision to bring her divorce petition in Goderich was motivated by reasons of strategy; she was “manoeuvring to obtain an unfair tactical advantage” and had not adhered to a civil procedure rule requiring divorce petitions that included child custody issues to be brought in the municipality where the children ordinarily reside.

Even though this constituted bad faith in the court’s eyes, the court nonetheless declined to lift the stay of proceedings to allow the father’s custody application to proceed separately. Having regard to all the factors overall, it was still more efficient and economical, according to the court, to have all issues resolved in the Superior Court.

For the full text of the decision, see:

Abdul-Razak v. Ghawi, 2012 ONCJ 180   http://canlii.ca/t/fqtvf