Court Cases & Orders

Justice Pazaratz Issues Another Sharp Ruling Amidst the Current COVID-19 “Existential Crisis”

Written by Russell Alexander / (905) 655-6335

Justice Pazaratz Issues Another Sharp Ruling Amidst the Current COVID-19 “Existential Crisis”

In the past we’ve covered some of the uniquely-phrased and incisive decisions of Ontario Superior Court Justice Pazaratz, who currently presides over Family Law cases in the province.

One of the more recent ones is from a case called Dhaliwal v. Dhaliwal.  As we have come to expect from Justice Pazaratz over the years, his rulings are always focused, realistic, and leave no-holds-barred.  This latest is no exception.

In Dhaliwal the father worked as an optometrist, while the mother stayed at home during the marriage to care for their two young children.  Since separation, the father claimed that his income had drastically and indefinitely been reduced, due to his need to shut down his practices in compliance with government mandates around COVID-19. This in turn reduced his ability to pay the carrying costs of the former matrimonial home that the family once shared, and where the mother and children still lived.

The father asked for a court order forcing the immediate sale of that property, as well as a condo that he and the mother had purchased jointly as investment.

In making his ruling, Justice Pazaratz began the judgment this way:

COVID-19 has instantly made most of our “He Said/She Said” disputes sound pretty petty.

We’re still in the midst of an existential crisis. Medically. Economically. Socially.

But rather than brace together against the common enemy, parents are pounding on the family court door, begging us to open up so they can get a few more kicks in — as if a judge has the power to wake anyone from this pandemic nightmare.

Business as Usual? Gone.

Nonsense as Usual? Here to stay.

The judge catalogued the various “pros” and “cons” of each spouse’s legal and factual positions in detail, and took into account the reality of the COVID-19 pandemic, which weighed heavily in the balance. In doing so, Justice Pazaratz making the following observations:

These temporary sale motions are never easy — and unfortunately COVID-19 has made just about everything in family court a whole lot harder.

a. Both parties complain of extreme financial hardship.

b. In other circumstances the court might have been more receptive to allegations of hidden income, under-employment, or self-created financial strain.

c. But COVID-19 has unexpectedly and unavoidably created a profound and indefinite financial crisis for this family.

d. The pandemic has particularly devastated the income capacity of the [father] who is currently the only breadwinner for this family of four.

e. I accept his evidence that as an optometrist his two rented shopping mall locations were forced to shut down in March 2020, when the COVID-19 restrictions were rapidly imposed by all levels of government (and by his governing professional body). I accept his evidence that while he has just recently started to reopen his business, it will be a gradual process with restrictions as to the number of clients he can see. His future operations and income levels are uncertain. The [mother] has provided no reason to doubt the [father’s] estimate that his income for 2020 will be perhaps half what it was in previous years — around $66,000.00.

f. I understand that there is no trust between these parties, and the [mother] is quite correct to require additional and ongoing disclosure as to the [father’s] current (and continuously-evolving) finances.

g. In pre-COVID-19 times, “disclosure” was our mantra, and judges were reluctant to impose any financial decision until every reasonable inquiry had been fully addressed.

h. But this pandemic has created such immediate financial crisis for so many individuals and businesses, that it would be unrealistic and inhumane not to understand that people are really hurting — and they need help now….

i. COVID-19 has at least temporarily ruined the financial prospects of both of these parties. And neither of them is to blame.

Which leads us to where most of these cases are going to have to go: Reality.

Ultimately, Justice Pazaratz granted the father’s request for an order directing the sale of the properties, but not before admonishing both parents in these very direct terms:

a. The parties simply don’t have enough money. And family court can’t print money for them.

b. At the best of times — even when the [father] was working and the parties were together — their financial situation was barely sustainable.

c. Now — with less money divided between two households — the only real mystery is why these parties are spending their few remaining dollars paying lawyers to debate the inevitable.

I accept that each of these parties feels the other is acting unreasonably and in bad faith.

a. The mother seeks to elevate her complaint by alleging that the father’s misconduct rises to the level of “malicious, vexatious or oppressive”, as discussed in the relevant case law.

b. I wouldn’t go that far

c. I find that both of these parties are frightened, angry and stubborn. That’s not enough to either force a sale or block a sale.

d. They are both acting so strategically and aggressively that they have lost sight of the harm they are doing to their children and to their bank accounts.

e. And they definitely don’t seem to understand that in this COVID-19 economy, financially wasteful litigation is an indulgence they can no longer afford.

For the full text of the decision, see:

Dhaliwal v. Dhaliwal, 2020 ONSC 3971

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.