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The Costs of Unreasonable Litigation

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It started with an email…

“We are both reasonable people and I really think we can work this out without spending 40 to 50 thousand dollars a piece in lawyer fees only to have a judge tell us something we could arrange ourselves.  Please I’m begging you to be reasonable.”[1]

…and ended in a 36-day trial, which cost the parties more than half a million dollars.

How does this happen? According to Justice Pazaratz of the Ontario Superior Court, in the recent decision, Jackson v. Mayerle, 2016 ONSC 1556, this case was an “overwhelming tragedy” and finically ruinous for the parties.[2]

Both the Applicant Father and Respondent Mother sought sole custody and primary residence of their young child, amongst other claims. The Respondent Father was largely successful at trial and presumptively entitled to his costs. On the costs motion, Justice Pazaratz was required to determine what costs if any to award to the Applicant Father.

Justice Pazaratz found the Respondent Mother liable for the Applicant Father’s costs of the trial in the amount of $192,000, $58,000 less that the costs award sought by the Applicant Father in his costs submissions. Justice Pzaratz concluded that the Applicant Father was “not only predominantly successful, but he was entirely or mostly successful on the issues which consumed the greatest amount of trial time”, as well as being presumptively entitled to full recovery on the issues of child support set-off and custody designation, on the basis of Offers to Settle served by the Applicant Father in the matter. In addition, Justice Pazaratz took into account and commented at length on the impact of the unreasonable litigation positions taken by the Respondent Mother and her unreasonable conduct exhibited in the course of the litigation. The following is an abridged list of examples of the Respondent Mother’s unreasonable conduct identified by Justice Pazaratz and set out in paragraph 54 of the decision:

  • The Respondent embarked on a campaign to shut the Applicant out of the child’s life.
  • The Respondent rejected reasonable proposals (such as mediation) to resolve sensitive parenting issues and maintained a unilateral and inflexible attitude, despite the negative impact her behaviour was having on the child.
  • The Respondent’s dictatorial approach left the Applicant with no alternative but to eventually bring an Application and then a motion.
  • Even after the timesharing schedule was resolved through a series of interim orders, the Respondent pursued a relentless campaign to marginalize and exclude the Applicant from the child’s life.
  • The Respondent was oblivious to the negative impact her uncontrolled emotionality and manipulations were having on the child.
  • The Respondent advanced dubious allegations with no credible supporting evidence.
  • The Respondent manipulated and fabricated evidence.
  • The Respondent attempted to introduce into evidence surreptitious recordings, without proper notice.
  • The Respondent repeatedly drew the child into the adult conflict.
  • The Respondent engaged in provocative and dangerous behaviour, such as stalking and driving behind the Applicant’s car after he picked the child up for access.[3]

At paragraph 12 of the decision, Justice Pazaratz asks: What will it take to convince angry parents that nasty and aggressive litigation never turns out well?[4] According to Justice Pazaratz costs sanctions can and should be expected in a case such as this: Courts have an obligation to deliver that message, so parents will stop pretending that hard-ball custody litigation is “for the sake of the child.”[5]

Thanks to Justice Pazaratz this decision and strong precedent will stand as a reminder to lawyers and parties alike of the importance of taking reasonable positions in litigation, making thoughtful and severable Offers of Settle, and keeping the focus on the best interests of the children, whose lives and wellbeing are so often caught up, if not fully entangled, in their parents’ conflict.

[1] Jackson v. Mayerle, 2016 ONSC 1556 at Introduction.

[2] Ibid at para. 7 and 10.

[3] Ibid at para. 54.

[4] Ibid at para. 12.

[5] Ibid at para. 115.

About the Author

Sarah was called to the bar in 2015, after completing her articles at an established family law firm in downtown Toronto. Sarah holds a Bachelor of Fine Arts from the Nova Scotia College of Art and Design, a Master of Fine Arts from the State University of New York at New Paltz, and a Juris Doctor from Osgoode Hall Law School.

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