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How Not to Act in Family Litigation

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How Not to Act in Family Litigation

Court cases involving other people can be highly instructive: – they provide a good (and free) lesson on the kinds of behaviour and conduct that attracts the courts’ reproach.

Using some recent Ontario family cases as a guide, here are three tips on what not to do in the course of your own family dispute and litigation:

1) Take an unreasonable position or bring unnecessary proceedings. In a case called J.A.B. v. R.J.S., the court found that the husband had persisted in making unreasonable and false allegations against the wife and her new partner, and had brought a court motion that turned out to be completely unnecessary and a waste of all parties’ time and money. In pointing out that “family law litigants are responsible for an accountable for the positions they take in the litigation”, the court took an exceptional step and ordered substantial indemnity costs against the husband.

2) Concoct an elaborate scheme to avoid spousal support and equalization. In Radlo v. Radlo, the court concluded that the husband had devised a detailed, completely unbelievable story to try to explain why certain business dealings took place and complicated transactions were made. The court found that they were all part of a scheme to take funds out of the wife’s legitimate reach, and imposed hefty costs on the husband. The court wrote:

The test in a civil case is on the balance of probabilities. I find on the balance of probabilities, based on the email evidence presented, that Mr. Radlo presented a nefarious scheme to deceive Ms. Radlo and the court with respect to the $353,600.00 and the $80,000.00. Thre preposterous explanations given by Mr. Radlo are not believable.

3) Unilaterally cut back on your support payments. In McSkimming v. Schmuck, the husband decided to reduce the spousal support payments that he had been ordered by an arbitrator to pay. After a successful motion by the wife, at least one settlement offer, the setting of legal costs, and a subsequent appeal, the court held the husband liable for the wife’s full legal costs of almost $17,000. He had taken the law into his own hands, and had deliberately inflicted harm on the wife both emotionally and financially.

For the full text of the decisions, see:

J.A.B. v. R.J.S., 2013 ONSC 7258, [2013] O.J. No. 5332, Price J. (Ont. S.C.J.)

Radlo v. Radlo, (2013), 2013 ONSC 7329

McSkimming v. Schmuck (2014), 2014 CarswellOnt 8435, Moore J. (Ont. S.C.J.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family-related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.