Court Cases & Orders

Eight Years of Litigation Later – “Obsessed” Husband’s Court Access is Curbed


Eight Years of Litigation Later – “Obsessed” Husband’s Court Access is Curbed

These days, it’s not uncommon for the average person to have had some personal exposure to the Family Court system – or at least know someone else who has. Dinner party conversation is replete with stories and anecdotes about acrimonious separations, and horrible divorces. And needless to say, the judges in the Ontario Family Court system have seen it all.

That’s why a series of decisions in a case called Kerton v. Kerton is noteworthy; both for the comments by the judge and the eventual outcome in one of them.

The court set the stage by describing the tenor of the spouses’ dispute this way:

The parties separated in January 1989. They have one child of their marriage who is now 11 1/2. After 18 days of trial before [Justice] Jenkins J. in March 1991, that trial judge introduced his 23 page written reasons as follows:

“This is a bitter dispute over custody …”.

Eight and-a-half years later, these litigants are still actively litigating. They have appeared in front of almost every justice that this court has available and the level of acrimony between these litigants is amongst the highest the court has ever seen.

Those eight years – and $500,000 in legal fees claimed to be paid by the father alone – were spent in squabbles over the minutest details around the custody of the child, including items such as the scope of the father’s daily telephone access to the child, and whether supervised access should be extended. The “pleadings” filed by the father – who was self-represented and had been the subject of a restraining order – had actually consisted of hundreds and hundreds of pages of affidavits. The father was also in arrears for more than $10,000 and owed more than $80,000 in unpaid court costs.

These various small issues were raised and heard in numerous motions over the eight years. The father, the court concluded, was on an “unrelenting … quest for justice as he himself perceives it, and was obsessed with the litigation, “to the point that it consumes him and affects his health, his employability and occasionally, his better judgment.” He eventually declared bankruptcy, and there were further disputes about whether the support orders were enforceable nonetheless.

Perhaps out of muted exasperation, the court found that this was one of those “rare cases” in which he would have to exercise some control over a litigant’s (i.e. the father’s) unfettered right to have access to the system. As the court said:

To require leave, or perhaps to order security for costs, does not deny the litigant access to the court; it merely controls such access. [The father] should not be denied a right to be heard, but it is reasonable, in the circumstances of this case, to require him specifically to identify the relief that he seeks, to demonstrate that it cannot await determination at trial and that he will be responsible for cost consequences if he is not successful.

(And notwithstanding this order, the father later went on to bring another application and several additional motions, all of which were dismissed. For a considerable period, he had paid no child support, owed a good deal of costs, and since his bankruptcy, had been on public assistance. He was ordered by the court to pay costs before he could even bring a motion for permission to bring further motions!)

For the full text of the decisions, see:

Kerton v. Kerton, [1999] O.J. No. 4478 (S.C.J.)

Kerton v. Kerton, [1997] O.J. No. 3932 (S.C.J.), 1997 CanLII 16997 (ON SC)

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.