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Posts from the ‘Costs’ Category

Vexatious Litigant Won’t Take “No” for An Answer

Vexatious Litigant Won’t Take “No” for An Answer

Sometimes you hear about Family litigants for whom their dispute against the former spouse has taken on a life of its own, and who will not stop until they have literally exhausted every possible legal and procedural avenue.   The case of Nassr v. Vermette seems to be a great illustration of this scenario.

The former couple had commenced their family litigation in 2009, after which time the husband brought numerous questionable and downright meritless applications and motions. In 2011, pursuant to an order of the court, he was declared a “vexatious litigant” – which means that he was prohibited from commencing or continuing any further proceedings.

About four years later the husband decided he wanted to have that “vexatious litigant” designation set aside. But the court flatly rejected his application, and made an order that declared the designation anew. For greater certainty, the wording made it abundantly clear that he was expressly prohibited from instituting any new legal proceedings, and was prevented from continuing any proceeding previously instituted by him, unless he obtained the court’s permission.

Yet the husband tried to launch another appeal, and duly asked the court for permission to proceed. Although the court granted him an audience, it found that he simply did not meet the test for being allowed to proceed, under s. 140 of the Ontario Courts of Justice Act, and found there was no merit to his appeal anyway. Section 140 deems the court’s decision to be final, so the husband was blocked from appealing the court’s refusal of his application for leave.

In other words, the husband’s road was formally at an end. Or so only it seemed.

The husband tried to appeal yet again, this time focusing on an earlier judgment that had been made dealing with custody, access, and child support. The wife brought a motion to have that appeal attempt dismissed, and she was successful.

In making its ruling, the court emphasized that since the husband had been declared a vexatious litigant, this meant he had no further right to appeal or take any other step. That designation had been validly made by an earlier court, and – under section 140 of the Courts of Justice Act – could not be appealed.

The court also rejected the husband’s last-ditch argument, to the effect that the Rules of Civil Procedure should be bent for him.   Under one of its provisions, the court was entitled at any time to decide that compliance with a rule could be dispensed with. The husband claimed he should be given the benefit of the doubt so that his appeal could go forward notwithstanding the prohibition in section 140 of the Act.

The court didn’t buy it. The provision the husband had in mind applied only to the Rules, not to the test for obtaining leave in section 140 of the Courts of Justice Act, which is entirely different legislation. The court went ahead and quashed the husband’s appeal.

Not to be deterred, the husband didn’t stop there: He applied for leave to appeal from that Appeal Court decision as well. That application was made to the Supreme Court of Canada, but it was dismissed with costs.

Game over.

For the full text of the decisions, see:

Vermette v. Nassr, 2016 ONCA 658 (CanLII)

Jason Donald Nassr v. Laurie Ann Vermette, 2017 CanLII 5363 (SCC)

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 RussellAlexander.com

Delays, Extensions, Adjournments and Excuses – How Not to Conduct Your Family Litigation

Delays, Extensions, Adjournments and Excuses – How Not to Conduct Your Family Litigation

A few weeks ago, I reported on a case called Schwilgin v. Szivy. I recounted the court’s stern response to a litigant – in this case, the husband – who had been obdurate in failing to comply with numerous prior court orders.

“Part 2” of this story reveals the court’s reaction to that same husband’s repeated delays in moving their divorce and custody issues along. Since the husband was self-represented, it all becomes a good lesson on “how not to conduct your own Family litigation”.

The couple had separated in 2002 and had two children.   Starting around 2010 they commenced what turned out to be rather lengthy legal process around custody and child support.

After a series of prior court decisions in the case, the husband wanted to appeal one particular order that related to (among other things) denying his requested variation of child support, and relieving him of the obligation to pay $75,000 he owed in child support arrears since 2006.

But what followed was a series of blunders and delays on the husband’s part. First, he filed his Notice of Appeal in the wrong court.   When the error was brought to his attention by opposing counsel, he went ahead anyway. But not only did the court refuse to hear him, it refused to transfer the matter to the proper court, and simply quashed the husband’s appeal outright.

By now, the husband was too late to file in the proper court venue.   He asked the court for an extension of the filing deadline claiming that, being a layperson, he simply made a procedural mistake in choosing the wrong court. The court didn’t buy it. The extension was turned down.

Having frittered away his right to appeal automatically, he now needed the court’s permission to take further steps toward an appeal.   But in yet another motion he failed to persuade the court that he had met the relevant test. More importantly, the court explained that the husband’s many poorly-justified delays in the past “weigh[ed] very heavily against” granting the time extension.

Which brings us to the latest ruling.

A full 13 months after the dismissal of his earlier motion for an extension, the husband brought yet another motion to have that order reviewed.

However, even though this was the 11th hour the husband was not cured of his shenanigans: After the hearing date was set, he contacted the court staff to ask for an adjournment. His reason? He was unable to find a lawyer, and unable “to defend himself due to illness” and a lack of funds.   This was contrary to earlier information stating that he had duty counsel lined up, which claim the court also found to be suspect.

The Appeal Court flatly turned down the husband’s latest request for an adjournment.   After reviewing his materials, it concluded that:

  • He had failed to provide current medical or other evidence in proper form to justify having the court grant the order;
  • He had not proven that he had legal aid lined up, as he claimed; and
  • There was no acceptable explanation for the husband’s 13-month delay in asking for a review.

Although he is quickly running out of legal options – and likely testing the courts’ collective patience – I suspect this will not be the husband’s “last kick at the can”.

For the full text of the decisions, see:

Schwilgin v. Szivy, 2017 ONCA 78 (CanLII)

The decision appealed from is:

Schwilgin v. Szivy, 2015 ONCA 816 (CanLII)

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 RussellAlexander.com

Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

A while ago I reported on one of several decisions in the ongoing litigation saga in Schwilgin v. Szivy, where the self-represented husband had made some procedural missteps in his divorce dispute with the wife. He had brought a series of appeals of judgments unfavourable to him, but was not always prompt in taking the necessary steps to do so.

At one point, he had missed the deadline for filing another appeal, and brought a motion to essentially ask the court for an extension.

The court had to consider whether, in light of the overall history of the matter and both parties’ conduct, the husband should be granted any leeway.

The main focus was on the fact that the man had not complied with numerous prior orders to pay costs: he owed the wife over $25,000 in connection with prior proceedings, yet he was coming before the court to ask for indulgences.

The court wrote:

Finally, I am not satisfied that the justice of the case supports granting the motion to extend. In quashing his appeal from the order of the motion judge, the Divisional Court ordered [the husband] to pay [the wife] costs of $10,000. He has not done so. In open court, [the husband] said he would not pay those costs because he contends he lacks the resources to pay them.

In her affidavit on the motion, [the wife] deposed that [the husband] owes her over $25,000 in costs from their matrimonial proceedings. In her letter of November 16, 2015 transmitting her responding materials to the court, [the wife] wrote:

I do not understand how [the husband] is permitted to constantly bring motions and appeals without paying the costs of previous court orders. It seems all the court does is order more costs, which I cannot collect. He gets stern words and a slap on the wrist (costs), and I get a bill from my lawyer. How is this fair?

That is a most legitimate question to ask. Courts usually talk in terms of prejudice which cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them.

The Appeal Court also quoted from a prior order of the Divisional Court, where the court had said this about the husband:

The [husband] has used this appeal as a means of delaying paying the arrears in question and the costs ordered to the [wife]. Further, the [husband] has a history of using Court proceedings in this way. This has caused the [wife] considerable prejudice.

After noting the long history of the proceedings – plus the husband’s attempt to write to the court directly by letter, which was inappropriate – the Court of Appeal declined to grant him an extension, concluding that the “justice of the case” demanded it.

For the full text of the decision, see:

Schwilgin v. Szivy, 2015 ONCA 816 (CanLII)

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 RussellAlexander.com

Top 5 Tips for Reducing Divorce Costs

Top 5 Tips for Reducing Divorce Costs

Even in the most routine of Ontario divorces, there are a large number of associated costs: lawyers’ fees, court filing fees, expenses relating to obtaining transcripts and documents, expert reports, and counselling fees. That’s just to name the main ones.

But – if you are smart – there are at least a few ways to minimize some of these costs. Here are my Top 5 tips:

1. Contracts are the Way to Go. The best way to cut down the costs of a contentious divorce, is to try your best not have a contentious divorce in the first place. Cohabitation agreements and separation agreements are the best way for you to try to maximize the likelihood of a smooth, quick, and relatively cheap divorce. They set the course of action and outline the legally-binding mutual expectations of you and your partner as to how to handle finances and assets both during your relationship, and after it ends.

2. Consider the Alternatives to Court. Family Court is not the only way to get disputes resolved. There are several alternatives available, such as mediation, arbitration, and collaborative family law. (Of course, this requires both of you to co-operate, which is not always possible).

3. Try Not to Sweat the Small Stuff. Not every dispute needs to be trotted out before the Family Court. Trivial issues, or disputes driven more by ego than by true disagreement, are often not worth the trouble and especially may not be worth the cost. For example, if you are paying your lawyer to fight for everyday items such as specific pieces of furniture or minor possessions, the “value” of the items can get quickly eclipsed by the time and legal costs needed to do so. In other words: choose your battles wisely, and keep the cost/benefit in mind.

4. Do Some of the Legwork Yourself. Most people are not capable of competently acting as their own lawyer (although many do try, nonetheless). But that doesn’t mean you can’t efficiently do some of the tasks that lawyers and their support staff would otherwise do for you. This can include obtaining and organizing your documents (which will expedite your lawyer’s more focused review), making a start on your own financial statements, and obtaining documents from the Canada Revenue Agency or other government departments.

5. Capitalize on the Things that are Free. There are many good, reliable, and free resources out there. Take advantage of them. These can include the website maintained by the Ontario Ministry of Consumer and Social Services, as well as many special-interest websites and resources aimed specifically at Family Law litigants. Using these resources, you can obtain some high-level familiarity with the Ontario and federal legislation and policies (including the Child Support Guidelines, and the Spousal Support Advisory Guidelines), and educate yourself on some of the legal processes you are about to embark upon. Familiarize yourself with the reliable information available to help you at least understand, if not actually make a decision on, your various options.

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 RussellAlexander.com

What Role for “Judicial Shaming” in Family Law?

cost-award

What Role for “Judicial Shaming” in Family Law?

Although it was a non-Family Law case, a line in a recent Ontario Court of Appeal decision caught my attention.

In Yim v Song the appeal judge was asked to rule in Chambers on certain procedural points, after various pre-trial motions had already been held in connection with the fulfilment of certain undertakings made by each former business partner to produce information, and relating to various refusals to do so. Clearly exasperated by the litigants appearing before him, the Appeal Judge wrote:

The ultimate dispute between these parties has not yet proceeded to trial. Nevertheless, the appellants have already attracted two substantial indemnity costs awards and their poor judgment and unreasonable conduct in this litigation has drawn sharp criticism from motions judges. No amount of judicial shaming seems to have had the least impact, however, and what is now unfolding in this court is more of the same.

Indeed, on one of those prior motions, the presiding judge began the ruling this way:

Very few things that we see in the context of civil litigation are as disheartening as the typical undertakings motion. This is one of those.

… The matter was argued before me in Owen Sound on November 27, 2015. I thought for sure that the hearing would end up being unnecessary in that the parties and counsel would have resolved the procedural wrangling. I was wrong. The wrangling is not done quite yet. A costs award may do the trick.

Clearly, both the lower-court and appeal judges in this case saw the need to impose pressure – including financial pressure in the form of costs sanctions if necessary – to encourage these particularly litigants to act reasonably and cooperatively if possible, and to expedite what would otherwise deteriorate quickly into a long, costly, and acrimonious dispute.

The question that arose in my mind is to what extent can (or should) similar judicial admonishments and sanctions be used in Family Law hearings. Because of all the courts that rule over matters in Ontario, Family Court Judges are arguably the most put-upon in terms of having to deal with a relentless parade of acrimony, poor judgment, steadfast unreasonableness, emotionality, confrontation, and strategic procedural wrangling. It’s the nature of the beast.

So the question arises: Should judges employ more pressure in the form of “shaming” to get family litigants to wise up?

What are your thoughts?

For the full text of the decisions, see:

Yim v Song, 2016 ONCA 642 (CanLII)

Yim et al. v Song et al., 2015 ONSC 7605 (CanLII)

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 RussellAlexander.com.

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

Unhappy Depressed Woman

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

This week’s case is not exceptional on its facts, yet it conveniently illustrates a few important ideas:

1) That Family Law litigation can have many ups and downs in terms of who is “victorious” at any given time;

2) That it’s easy to run up enormous costs in the course of trying to come out ahead; and

3) That courts are mindful of how that back-and-forth of litigation can detrimentally affect the children of the marriage.

The mother and father had three children together, aged 14, 13 and 12. Once the parents separated, they agreed that the children would live with the mother, with access to the father on a specified schedule.

However, a dispute arose as to whether the mother was complying with their deal; this led to the father bringing several motions for contempt. Next, there had to be a separate trial, lasting 19 days, to deal with the unwinding of the parties’ financial affairs; A custody-and-access hearing followed soon after, lasting another 22 days. A later review of those arrangements took a 23-day trial-like hearing that took 10 months to complete.

At this point, the father’s legal costs for these proceedings totaled about $400,000; given that he had been successful in terms of the outcome of the various proceedings, the trial judge made an order making the mother liable to the father for that full amount.

The mother then brought an appeal, not only of that costs award but also of the various unfavourable substantive rulings (including one that adjudged that her children had suffered “emotional abuse” at her hands in the preceding 2.5 years. This involved a finding that the mother fostered the children’s distorted reality of their father, based on her own fear and dislike of him).

The Appeal Court began its judgment this way:

Before dealing with the issues raised on the appeal, it is worth recalling for mother and father the bigger picture. The trial judge devoted 45 hearing days to their custody and access dispute. The 2013 Order reversed the custody of the children. More than two years then elapsed before the parties were ready to argue the appeal. During that time, the children have lived with their father. They are now 14, 13 and 12 years old, and they have lived the last seven years of their lives in the shadow of their parents’ litigation. The children are entitled to a stable childhood, not one marked by uncertainties over their living arrangements and contact with their parents resulting from the bitter dispute between mother and father.

The appeal record filed by the parties is voluminous. In the months prior to the hearing, the parties generated a blizzard of new paper with their competing motions for fresh evidence…

In reviewing the trial judge’s reasons, the Appeal Court found no fault with them overall: for example the trial judge’s factual finding that this was “an extreme case”, and that the children were suffering emotional abuse by the mother, was supported by the evidence. Still, for various complex reasons the Appeal Court did find that a review of the access arrangements was merited at this point (and suggested that the review should take no more than a few days – rather than the 20-plus days such a review had taken in the past). The mother’s access to the children was temporarily increased in the meantime.

This meant that in the appeal portion of the proceedings the mother had won some of her arguments; but the father had come out on top in others. In other words, success was divided; this played into the question of whether either of them should pay the legal costs of the other. Specifically, the mother asked the court to award her the full $207,886 she spent bringing the appeal, while the father asked for his costs totaling $124,440. In ruling on the costs issue, the Appeal Court wrote:

The parties enjoyed mixed success on the appeal and, as a consequence, mixed success in respect of the proceedings below. The fairest disposition of the costs of this matter is that the parties bear their own costs of the appeal, and I would reduce the costs payable by the mother to the father under the Costs Order for the proceedings below from $400,000 to $200,000, inclusive of fees, disbursements and taxes.

So even with a partial victory on the appeal, the mother was still on the hook to the father for more than $400,000. Even on a generous interpretation, it’s hard to call that a “win”.

For the full text of the decision, see:

Fiorito v. Wiggins, 2015 ONCA 729

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 RussellAlexander.com

Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

salp

Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

In a case called DeBiasio v DeBiasio the father was in arrears on his support payments of $1,800 per month for his three children, one of whom lived with him. Eventually, when the other two children also moved in with him in July of 2015, he started negotiating with the mother to change his child support obligations. Together, they signed a court form in late August asking for a court date for them to formally change the child support on consent.

However, the matter of the father’s arrears had already been sent to the Family Responsibility Office (FRO) for enforcement, and it had started to take the authorized steps to force him to pay. To this end, he received a letter from a FRO caseworker around this same time, advising that he was being reported to the Credit Bureau.

This meant that – to the father’s frustration – both the FRO’s enforcement steps and the parents’ court-supervised attempts to settle issues around child support were proceeding in tandem, but independent of each other.

The court motion stalled for unrelated reasons; meanwhile, the father learned that the FRO had taken steps to garnish his wages. When his lawyer wrote to the FRO to advise that the consent motion was pending, the caseworker claimed that her hands were tied since the order to pay child support was still “on the books”. Soon after the father learned that the FRO was taking steps to have his driver’s license suspended. Some of his lawyer’s many attempts to correspond with the FRO directly garnered no response.

Eventually, the father managed to get a court order, directly the FRO to refrain from taking additional steps against him.

The father then asked the court to order the FRO to pay his legal costs – and succeeded.

Here, the court’s task was to balance the FRO’s mandate to enforce all support orders that are filed with it, against the individual interests of the father. Since the Director of the FRO has some leeway in choosing the manner of enforcement in any given situation, the test is whether the Director had exercised that discretion in a reasonable manner in the father’s particular case.

After reviewing a few prior cases in which the Director of the FRO had been ordered to pay costs, the court noted that they tended to arise in cases where there were “aggressive enforcement actions on the part of the FRO” despite the existence of a real and substantial dispute between parties that they had taken steps to resolve with the court. This was precisely the case here. As the court put it:

In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing. It was made abundantly clear that there had been a material change because of the move of the children. While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.

Having been made aware of the scheduled consent motion, the FRO should have allowed the process to go forward before taking any further enforcement action. Its failure to do was unreasonable. The court also chastised the FRO for failing to provide an adequate level of communication, since it repeatedly failing to respond to the communications from the father’s lawyer. This, the court found, was in breach of the FRO’s duty to provide timely and meaningful responses to paying parents and their lawyers.

The court ordered the FRO to pay the father $7,500 in costs.

For the full text of the decision, see:

DeBiasio v DeBiasio, 2016 ONSC 2253 (CanLII)

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

Over Three Years and $500,000 Later, Judge Laments Financial “Tragedy” Parents’ Custody Battle

tradegyOver Three Years and $500,000 Later, Judge Laments Financial “Tragedy” Parents’ Custody Battle

In a costs ruling from earlier this month in an Ontario custody battle, the court began its ruling this way:

There are many factors to be considered in deciding costs. I will review them below.
But pause for a moment to consider the overwhelming tragedy of this case.
These are nice, average people. Of modest means (now considerably more modest). They drive old cars and probably pinch pennies shopping at Costco.
And yet somehow, between them, they spent more than half a million dollars on lawyers “to have a judge tell us something we could arrange ourselves.”
No matter what costs order I make, the financial ruin cannot be undone. They’ll never recover. Their eight year old daughter’s future has been squandered.
How did this happen? How does this keep happening?
What will it take to convince angry parents that nasty and aggressive litigation never turns out well?

The court’s lament was particularly poignant given that the father had written an e-mail to the mother, long before the court case started, imploring her to be reasonable and avoid “spending 40 to 50 thousand dollars apiece in lawyer fees.” In the end, about 3.5 years later, the father had actually spent $300,000 on lawyers in order to obtain sole custody of their daughter, while the mother had incurred more than $200,000 in legal fees to resist his claim.

Given his overall success in the matter, the father went back to court for an order requiring the mother to pay his legal costs incurred. To that end, the court scrutinized the various offers to settle that the parents had made to each other during the course of the hearings, as well as their overall approach to the litigation. In particular, it found that the wife had engaged in “unreasonable behaviour” by refusing the father’s reasonable settlement offers, by fabricating or manipulating the evidence, and by attempting to alienate the child from her father.

For that reason (among others) the court ordered the mother to pay the father $192,000 in costs and then added: “All of this could have been avoided. All of this should have been avoided.”

What are your thoughts on the court’s rather sobering comments?

For the full text of the decision, see:

Jackson v Mayerle, 2016 ONSC 1556 (CanLII)

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 RussellAlexander.com

Wasting Money In Family Court

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Wasting Money In Family Court

Family Court is frequently the setting for high emotions, relentless acrimony, and what can turn out to be very costly litigation. All too often, the proceedings are driven not by what’s in the best interests of the children, but rather by the ego of the parents, who are determined to “win” at all costs.

However, what these parents often overlook is that the financial costs they incur to participate in the unnecessary wrangling between them is actually depriving their own children of needed resources that could be far better spent. Not surprisingly, this reality has not escaped the attention of the courts themselves.

In a case called Beckett v. Beckett, the court said:

Too often, protracted litigation impoverishes separated families. Both parents suffer – and inevitably their children suffer — when limited financial resources are wasted on motions and trials which could have been avoided.

This source of the court’s concern was well-illustrated in another family law case called Delichte v Rogers. There, the mother had attempted to cancel a case management hearing on short notice; this meant that the half-day scheduled time-slot would not be available to other litigants. Pointing out that the time deadlines for filing affidavits and conducting cross-examinations for the case management meetings could not be “casually disregarded,” the court took the mother to task. It said:

The court has a duty to administer its scarce resources wisely and cannot allow litigants to run roughshod over its own process by ignoring deadlines, the rules of court and capriciously failing to show up at scheduled hearings.

But more importantly, the court chastised the mother for wasting the father’s – and by extension, the children’s – money. Even though she was an unrepresented litigant, the court concluded that the mother must or ought to have known that the father would have already incurred significant legal costs in adhering to those same deadlines. The court said:

Somehow the mother is also oblivious to the obvious fact that by running up the father’s legal bills she is also depriving her children of potential financial resources.

Finally, the court added:

The attitude and behaviour that the mother brings to this litigation is troubling as it only increases the intensity of the conflict and creates an environment in which any kind of settlement discussions are impossible.

The message to take from these kinds of cases is this: It’s never wise to run up costs unnecessarily. But leaving aside whether the parents’ disputes have substantive merit, they should never lose sight of who the real victim might be: – it could be the kids.

For the full text of the decisions, see:

Beckett v. Beckett, 2010 ONSC 2706 (CanLII)

Delichte v Rogers, [2013] M.J. No. 113, 2013 MBQB 93 (CanLII)

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

Court Admonishes Litigants Who Drive Up Their Own Legal Fees

costs gavel

Court Admonishes Litigants Who Drive Up Their Own Legal Fees

Family law litigation is frequently (and unfortunately) filled with intense acrimony between former partners, plus highly-charged emotions and a “win-at-all-costs” mentality. From the perspective of litigation procedure, this often plays itself out with one spouse deliberately inflicting needless inconvenience or added cost on the other, by making otherwise-legitimate procedural decisions that are secretly aimed to drive up his or her legal expenses.

Good examples of this kind of strategic one-upmanship on the part of former spouses include: bringing proceedings in an inconvenient location; failing to cooperate with existing orders; taking unneeded steps or bringing unnecessary motions (or forcing the other spouse to bring his or her own motion to get compliance with an earlier order); generally failing to co-operate, and racking up needless legal costs. These deliberate cost-inflating tactics are particularly egregious in light of the “loser pays” that governs costs in Ontario family proceedings: once the matter is over, the former spouse who is unsuccessful at trial will generally be required to pay the legal costs of the successful spouse.

But despite the common adage that everyone “deserves their day in court”, judges are not unfailingly patient with litigants who choose this strategy. To the contrary, courts will usually express their displeasure by way of an unfavorable costs order, or by crafting an order to apportion costs in a manner that makes it clear that the otherwise-successful party is nonetheless being penalized for his or her behaviour.

This was the situation in a high-conflict Ontario divorce case between two University professors called Czegledy-Nagy v. Seirli. Early in the proceedings, after hearing two preliminary motions for temporary orders relation to custody of the children and prompt sale of the matrimonial home, the court was asked to make a ruling on which of them was to pay the whopping $65,500.00 in legal costs that the husband had apparently incurred so far.

In this context, the court took the opportunity to reflect on the reasonableness of the husband’s decisions as to choice of counsel and approach to litigation preparation, particularly since resolving the issues between him and the wife would doubtless require protracted litigation in the future.

The court wrote:

[The husband] may hire as many lawyers as he wishes to have on his team, from whichever city he wants them to come from. That is his prerogative. (See Grant v. Grant, 2006 CarswellOnt 17 (Ont. SCJ)
However, no litigant should expect to drive up the cost of litigation in that manner for his/her own satisfaction or his/her need for attention and then to have the court saddle the other litigant with that bill.
There are many very competent local counsel (some are even LSUC family law “specialists”) in this Region.

The need to import another from afar is unnecessarily and indulgent.

In any event, the Court need only consider as one factor the amount that a successful litigant has expended to achieve success. Some litigants need more “hand-holding” than others and some counsel bill heavily for the slightest effort where others do not.

Therefore, despite [the husband] spending almost $65,500.00 to get to a temporary order (which required two attendances on motions), the principle of reasonableness that directs my determination is whether a reasonably party, opposing [the husband’s] motions could possibly anticipate an order for costs against her even approaching such a breathtaking quantum were she to lose those motions.

Despite my colleague, Wood J.’s view, expressed in [the decision in] Grant … that losing litigants in centres outside of Toronto should be ready to face “Toronto rates” if their opponent hired a Toronto Carriage Trade Counsel, my view is that [the wife] could not possibly anticipate being held responsible for the gargantuan costs order as sought, (especially when her counsel charged her only $15,000 for those same services).

I find that the Applicant’s cost-request entirely overreaching …

Ultimately – and rather than award the husband his full costs – the court adjusted them greatly downward, taking into account the poor behaviour of both spouses so far. Among other things, it ordered the wife to pay $9,500 in legal costs in connection with the earlier emergency motion brought by the husband, which the court pointed out was necessitated by her “selfish action to remove the children from their home and their father.”

For the full text of the decision, see:

Czegledy-Nagy v. Seirli, 2012 ONSC 119 (CanLII)

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