(note: this blog is NOT legal advice)
Family court suffers from a nasty problem: it’s very hard to stop unreasonable people — even crazed people — from taking their unfounded grievances before a judge, losing spectacularly every time, then coming back for more. In regular court, such menaces can be neutralized, or at least discouraged, by hitting them with hefty costs penalties when they lose. And if they don’t pay, they can’t come back. But family court is different because oftentimes the battle is about child custody and access, so if the proceedings are shut down because of unpaid costs, it’s the children who might end up suffering. Therefore family law litigants who run up losses are typically given a lot of leeway to keep going even if they don’t pay — unless, of course, their behaviour is exceptionally bad. Below is a sad example of such a story.
In this case it was a young child’s mother who behaved badly. To give some idea of how badly, in the beginning the child lived primarily with her, and she had custody. In the end, after not one but two trials, the father got custody, and she was reduced to two hours a week with the child, supervised, at an access centre. “I have never seen a parent in a custody dispute more effectively and consistently demolish their own case,” declared the judge.
The mother kicked off the lawsuit by making serious and false accusations against the father, such as bad parenting, violence, abuse, and even a claim that he threatened to “throw her off a balcony.” However, the judge found that “she lied repeatedly,” and she made “transparent efforts to undermine and interfere with father’s relationship with the child.” In truth, said the judge, the father was “in every respect a loving, caring, responsible, insightful parent,” whereas the mother had “a presumptive attitude that she should have complete control of the child merely by virtue of being the mother. She had no insight or understanding as to the cruel impact of her alienating behaviours.”
Weirdly, in the second trial, the mother was found to be a flight risk, with plans to abduct the child and go overseas. The judge was taken aback at her apparent desire to sweep this under the rug. “To my knowledge,” the judge lamented, “the mother has never actually admitted she was planning on abducting the child. She appears to hope that with the passage of time we will simply forget about that problem.”
So, when she tried to return to court yet again, having demonstrated a “consistent pattern of deception and reckless litigation,” not to mention the fact that she owed more than $30,000 in unpaid costs to the father, the judge said no — unless she ponied up $2,500 (a modest sum, perhaps explained by the fact that she was on welfare) in security for future costs awards. Furthermore, the judge stipulated that mother’s fresh court action must be confined to specific issues of child access, which he spelled out for her. “Litigants,” he said, “should not be permitted to use the court as a playground.”
Interestingly, the judge cited the Supreme Court of Canada’s 2014 decision Hryniak v. Mauldin, which calls for a “culture shift” in our court system. Injecting a bit of humour in its reasoning, the top court declared that “one would not expect a jury trial over a contested parking ticket.” Sadly, that is precisely what many family law litigants do expect.
Taking up that theme, the judge in the custody case made a number of forceful points about the “new realities we’re all going to have to face” in our court system. For one thing, “protracted and expensive litigation is in nobody’s best interest” if a just result can be achieved more quickly and efficiently. Plus, “perpetual litigation in the name of ‘protecting the child’ usually has the opposite effect.”
Particularly in family law, he noted, “we have created a complex, time-consuming and expensive system. We will promote mischief and abuse of that system if some litigants never have to worry about legal fees or costs consequences.” Accordingly, in this case, he took the extraordinary step of ordering security for costs before the mother was allowed back in the courtroom.
This is a reminder that, where possible, family disputes should be steered toward alternative resolution methods such as mediation, and collaborative law. Obviously it wouldn’t have worked in this case, but if you have two sane people, who are willing to compromise, it’s best not to let them get sucked in to a bottomless and toxic quagmire.
Bill Rogers is a Toronto-based lawyer, journalist, and family law mediator.
