When the Litigation Last Longer Than the Marriage
In a recent case called Rosenberg v. Yanofsky, the spouses separated after a 37-year marriage. It took them six additional years to negotiate a separation agreement – which then had to undergo the scrutiny of an arbitrator because they could not agree on the proper interpretation of one of its terms. Due to the spouses’ own delay, that arbitration hearing did not take place for another six years. Then, the wife appealed the arbitrator’s ruling to the court, which required another 12 months before it could be scheduled.
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While 13 years post-split may seem like a long time to untangle the legal fallout from a 37-year marriage (and it is!) there other cases featuring proportionately longer post-separation litigation – sometimes longer in duration than the marriage itself.
Inevitably, responsibility for the slow and costly pace of litigation can be laid directly at the feet of the parties themselves. For example, in Metzner v. Metzner, the court wrote:
At issue on this application is the matter of costs of the trial of these proceedings and of most of the applications preceding and following trial. The trial took seven weeks. The proceedings have been bitterly litigious since the parties’ separation on December 22, 1989. The marriage lasted seven years. The litigation has lasted longer than the marriage. This is one of those matrimonial proceedings that has devastated both parties and their two children.
At trial the issues were manifold. No opportunity to dispute a point was lost. Many hundreds of thousands of dollars have been spent in legal fees. Dr. Metzner’s extraordinary earning ability as a highly productive orthodontist has allowed him to survive financially. Mrs. Metzner, I am sure, is facing financial difficulty. She has already paid in excess of $320,000 in legal fees.
Similarly, in connection with the end of a 14-year marriage which sparked nearly 20 years of litigation, in Beattie v. Ladouceur the court said:
The parties were married on August 9, 1969, and were divorced pursuant to a Decree Absolute … on May 26, 1983. … The Respondent has not made a voluntary payment of child support since 1989.
I view this case as a tragedy. There is no other way to describe it. The parties have been in litigation for almost two decades with no real end in sight. There have been some forty-nine orders made in this matter. Thirty-four findings of contempt have been made against the Respondent. The Respondent was sentenced to 120 days incarceration, without any benefit of parole, for the 21 contempt citations made … His sentence was served. According to the Applicant, the Respondent presently owes the Applicant approximately $548,429.00, inclusive of $352,179.00 in costs.
Courts are not shy to express their displeasure at these kinds of cases, nor are they unwilling to point fingers at the culprits. For example, in a case called Holmes v. Holmes, the court reproached the spouses themselves, but also criticized their respective lawyers for their role in stirring the litigation “pot”. The court said:
As I have indicated in previous decisions, this was wasteful and unnecessary litigation and this couple could ill-afford this type of protracted litigation where the results were predictable, the issues were non-existent, and the costs would severely and negatively impact their lives.
Money that was spent foolishly on this pointless litigation could have been utilized by both of them to better their lives and the lives of their children. How this couple ended up involved in this money-draining ‘sinkhole’ of litigation is truly a tragedy for them and the administration of justice.
The respondent is the party that is primarily responsible for this financial disaster but both experienced counsel in my view bear some responsibility in allowing this litigation to end up in a three-day trial. Even the cost submissions probably expended thousands of additional dollars, money that the parties could not afford to spend.
… While I have no jurisdiction to mandate legal fees rendered by counsel for the petitioner or the respondent, I am confident that my concerns with respect to this protracted and unnecessary litigation will be reflected in counsels’ legal fees to their respective clients.
For the full text of the decisions, see:
Rosenberg v. Yanofsky, 2019 ONSC 6886
Metzner v. Metzner, 1997 CanLII 4341 (BC SC)
Beattie v. Ladouceur, 2001 CanLII 28166 (ON SC)
Holmes v. Holmes, 2005 CanLII 5488 (ON SC)
