Household legislation litigation works greatest when each events’ conduct is rooted in good religion and centered on an environment friendly decision of the disputed points. Sadly, that’s not at all times the case. Dangerous religion, every so often, creeps its means right into a household legislation case and the outcomes might be insidiously disastrous, each emotionally and financially.
That’s exactly what occurred in a 12-day custody and entry trial earlier than Justice Kristjanson of the Ontario Superior Court docket of Justice. In that case, each dad and mom had been 27 years previous and embarking upon careers as medical medical doctors, with their residencies to start simply months earlier than the beginning of their daughter. The mom’s neurology residency was in Buffalo, N.Y., whereas the daddy’s physiatry residency was in Toronto. The daddy ended the connection and their daughter was born six months later. The events reconciled briefly following their daughter’s beginning. That reconciliation, nonetheless, proved to be short-lived and a combat over the daughter shortly ensued.
However the events’ plan for the kid to reside with the mom in Buffalo, the daddy commenced litigation in Ontario, looking for sole custody and an order the daughter reside with him in Toronto. The decide discovered that, over the course of the protracted two-year litigation, the daddy made false allegations towards the mom with a view to 1) withhold entry, 2) prohibit the kid’s residence to Toronto, and three) insist the mom’s entry to the kid be supervised. The daddy misled the courtroom with a view to acquire a strategic benefit within the litigation. In keeping with the decide, the daddy’s technique was to “undermine the mom’s function and competence as a father or mother” and was “designed to inflict emotional and monetary hurt.” The daddy’s actions had been “dangerous to the daughter and had been taken to deceive each the mom and the courtroom.”
The daddy’s antics acquired him nowhere. The mom was granted sole custody of the events’ daughter and the daughter is to reside primarily with the mom in Buffalo. Whereas the daddy was granted beneficiant weekend and vacation entry, the result’s a far cry from the orders the daddy sought within the litigation. The decide’s unsympathetic notion of the daddy didn’t finish there. The decide’s companion resolution in respect of who would pay the authorized prices is a radical and stern commentary on the daddy’s actions within the litigation.
On the outset of her prices resolution, Justice Kristjanson notes that she “discovered the daddy took unreasonable and obstructive positions all through the proceedings.” Towards that backdrop, the decide goes on to evaluate whether or not the daddy’s conduct amounted to dangerous religion. In household legislation proceedings, a discovering of dangerous religion, whereas uncommon, has critical implications in figuring out the extent of a litigant’s obligation to pay the opposite get together’s authorized prices. Particularly, below Ontario legislation, “if a celebration has acted in dangerous religion, the courtroom shall determine prices on a full restoration foundation and shall order the get together to pay them instantly.”
Because the impression of such a discovering is of great import, the brink in reaching such a discovering is comparatively excessive. To return throughout the which means of dangerous religion, behaviour should be proven to: 1) be carried out with intent to inflict monetary or emotional hurt on the opposite get together or different individuals affected by the behaviour; 2) conceal info related to the problems; or three) to deceive the opposite get together or the courtroom. In keeping with Justice Kristjanson, “the essence of dangerous religion is when an individual suggests their actions are aimed for one goal when they’re aimed for an additional goal.”
Given the factual matrix, the decide, with out hesitation, discovered the daddy’s conduct had amounted to dangerous religion. On that foundation, Justice Kristjanson embarked upon a willpower of the quantity of prices the daddy owed the mom. The mom sought prices of $456,411. The daddy resisted, saying that the mom’s charges had been extreme and on account of “over-lawyering and extra time.”
The decide disagreed, ordering the daddy to pay $420,000 to the mom. In doing so, the decide famous that, “The place of the Father in these proceedings resulted within the Mom incurring substantial authorized charges. The Father can’t be permitted to litigate within the method he did with impunity. The Mom’s authorized charges may have been considerably decrease, however for the unreasonable positions and dangerous religion conduct of the Father. The prices order on this case partially displays the purpose of discouraging and sanctioning inappropriate behaviour.”
This resolution serves as a warning to household legislation litigants that the courtroom course of can’t be used to exacerbate battle. Fairly, the courtroom course of must be used to resolve battle. Shedding sight of this vital distinction will probably be met with sharp criticism and legal responsibility for prices.
Adam N. Black is a associate within the household legislation group at Torkin Manes LLP in Toronto.