In Family Court, the Ends Don’t Always Justify The Means (or Why Fighting for Your Rights May Be a Bad Idea)

In a recent Toronto Family Court decision, available here, Justice Czutrin, of the Ontario Superior Court of Justice awarded $90,000 in court costs to a woman who did not have a family lawyer (or any lawyer) assisting her at trial. In this case, the former husband sought a reduction in child support, but the reduction owed was far less than he spent on legal fees. During the course of the court case, the former wife proposed that the parties try to resolve the matters between them through mediation, which the former husband rejected, and made offers to settle the case that were closer to what Justice Czutrin decided after trial than any offer the former husband had made. There was no question that had the former husband accepted the wife’s offers, he would have been better off financially than he was after paying the costs of having his Toronto family lawyer take the matter to trial. 

In a recent Law Times article, available here, I commented on the important messages that Justice Czutrin was sending to people in family court cases. To win your family court case, you have to behave in a way that judges like so I am going to expand on my comments in the Law Times article here.

First, Justice Czutrin was clearly not pleased that the husband had refused to go to mediation. Family court judges believe in mediation, mediation/arbitration, and collaborative law as means to settle family law disputes. This is not just because many family courts are overburdened with cases. Regardless of what court you are in, the costs of going to court are almost always exponentially more expensive than choosing one of the alternatives. Depending on the complexity of your case, it can cost as much to get to the first court appearance as it does to resolve your case entirely in mediation. Check out this web page for a more thorough explanation of meditation, mediation/arbitration, and collaborative practice. Court is the only dispute resolution mechanism that one person can force another person to use. Both sides have to agree to use mediation, mediation/arbitration or collaborative practice. Since a person can be dragged into court, the court system has a lot of procedural safeguards to protect everyone involved in a court case. Unfortunately, those safeguards make court cases more expensive. In addition, because family court procedure is less flexible than the procedure that can be used in mediation, mediation/arbitration or collaborative practice, things usually take longer and cost more in court. An additional consideration is that in alternative processes, the parties can pick the process that they like best, pick the procedural rules, and usually pick who will decide the issues between them, which is not possible in court.

A second consideration arising out of Justice Czutrin’s decision is that judges do not like it when people in family law cases spend more “fighting for their rights” when their case is worth it. Court cases are so expensive that unless the case involves concerns about a child’s welfare, or financial amounts that are more than at least $50,000, the family, and both parties are better off doing what it takes to settle, even if that involves making concessions than they are if they go all the way through a court process. However, another consideration is that when one spouse is mentally ill, abusive, addicted to substances, or determined to destroy their former spouse going to court may be necessary just for protection.

Finally, and in relation to both the expense of court and unreasonable spouses, Justice Czutrin recognized that it can be a tactic for the better-off spouse to use the court system as a weapon to destroy their former spouse. A spouse who can afford the time and expense associated with court, and who knows that their former spouse does not have those resources, can drag out the court process to make it too costly for their former spouse to fight for what he or she would be entitled. This tactic is really a money-losing one as increasing the cost of court usually drives up expenses for that wealthy spouse beyond what just paying the requested support would cost. It is more often just a deliberate attempt to destroy the former spouse. However, Justice Czutrin sends a clear message that spouses who get caught deliberately driving up their former spouse’s legal fees in court can expect to have to reimburse those legal fees in the end. Being blatantly aggressive or difficult rarely works out in family court.

Justice Czutrin discussed several ways that family law litigants anger judges in ways that harm their case. There are other ways to upset family court judges. People who are in family court should pay attention to the advice given by Justice Czutrin, and by family lawyers if they want to “win their case”.