Justice Pazaratz Decries “Litigation Nonsense”
Those of you who regularly read this Blog, will know that Ontario Superior Court Justice Alex Pazaratz can be counted on to tell it like it is, particularly to Family Law litigants.
His recent decision in a case called Berta v. Berta is no exception.
The Judge’s trenchant ruling was set against the larger background of a dispute between former spouses over spousal support. Although there was no real “dispute” to speak of: The husband had repeatedly refused to comply with a previous court order directing him to pay almost $14,000 a month in spousal support to the wife, for an indefinite time period. This was despite a 9-day trial spread over two years, and a series of unsuccessful appeals by the husband that ultimately confirmed the original order to pay in no uncertain terms.
(The last of those unfavourable rulings was from the Ontario Court of Appeal – and the husband applied to vary it even before he had read the Court’s decision. He abandoned that application soon after, but not before racking up another $80,000 in court costs that he now owed to the wife for his aborted appeal bid).
The husband now appeared on yet another motion before Justice Pazaratz, this time asking to have the matter transferred from Hamilton to Milton, where some related court matters were already underway. In response, the wife wanted those Milton matters transferred and consolidated in Hamilton.
“In this context, Justice Pazaratz not only rejected the husband’s motion, but also rebuked him for the latest in a long line of unreasonable and uncooperative behaviour” – Jason Isenberg, Associate Lawyer
In this context, Justice Pazaratz not only rejected the husband’s motion, but also rebuked him for the latest in a long line of unreasonable and uncooperative behaviour. Indeed, looking at the entire course of the protracted litigation, the husband had acted in bad faith, had used many stalling tactics, and had repeatedly failed to obey prior orders outright. The tally of what the husband still owed the wife in unpaid spousal support and legal costs was close to $500,000.
According to Justice Pazaratz, the husband’s conduct was tantamount to “economic warfare” against the wife, and was designed to “force her to continuously spend money to enforce her rights under the guise of an unproven inability to pay”.
In the course of rejecting the husband’s latest requests on numerous legal grounds, Justice Pazaratz admonished him for his wasteful litigation tactics in these terms:
The [husband] has provided no explanation in this motion as to why he started a motion to change spousal support; then stopped it after causing the [the wife] to incur enormous expense; and then started it again in a different city.
The [husband] has provided nothing to rebut the very credible allegation that he continues to engage in economic warfare, by making this litigation as complex, unproductive, inefficient and expensive as possible.
The COVID pandemic has left our court resources strained as never before. Even working at maximum efficiency, our reduced capacity in family court means that every day more and more families are left waiting for access to justice. In many of those delayed cases, the well-being and circumstances of children and vulnerable people are at stake.
I’m not sure why we tolerated as much litigation nonsense as we used to. But that’s not an option anymore.
We can no longer permit or tolerate an inefficient or cavalier approach toward judicial resources. We can no longer overlook or gloss over oppressive, reckless or malicious behaviour.
For expediency, Justice Pazaratz then ordered certain aspects of the larger litigation between the spouses was to be transferred from Hamilton to Milton – as the wife wanted – and then ordered the husband to pay her another $4,000 in legal costs for the current motion.
For the full text of the decision, see:
Berta v. Berta, 2021 ONSC 605
