Recently, the Ontario Court of Appeal ordered a spouse to pay his spouse over a million dollars, but not in relation to property division nor child support, nor spousal support. The husband had to pay those amounts in addition to over a million dollars that the Court ordered him to pay to his ex-wife to cover her legal fees. Yes, courts can order one spouse to pay all the costs for the divorce and surrounding litigation. Doing the right things after separation, and in Family Court can create big savings for a separated spouse, while denying a "big win" for his or her ex.
There can be a lot of anger and other emotions in separation and divorce. Some separated spouses head to a lawyer's office, or to Family Court, in the hope that they can force their ex to live in a box under a bridge. Some even expect that if they spend exorbitantly on legal fees for an aggressive lawyer, they can force their spouses and children into homelessness. However, if a judge believes that is a spouse's goal, the efforts can have the opposite of the intended result.
The recent Ontario Court of Appeal decision in Lakhtakia v. Mehra is not the first time that the Court has ordered one spouse to pay the other spouse's legal and accountant fees totalling several hundred thousand dollars, even when doing so would cause financial hardship. Ontario Judges, especially Family Court Judges, will make a spouse whom a judge believes has acted unreasonably to pay all of their ex's expenses in relation to the divorce, child custody or support proceedings. Rule 24(4) of the Family Law Rules authorizes such Orders. The rationale for this rule is, in part, to discourage separated spouses from acting vindictively towards each other, or to reward a spouse from acting appropriately when his or her spouse is not. It is also because these types of behaviours result in more court appearances, both conferences and motions, which not only increase the party's legal fees and delay the matter, but clog up the court system. Judges feel that parties who do so should provide compensation for wasting everyone's time.
Spouses who want to make things difficult for their exes often believe that their strategies are innovative and undetectable by the Court. However, judges, all of whom are former lawyers, sit in court everyday, often hearing multiple matters every day, and possibly thousands of matters every year. They have seen many, many attempts to create unnecessary difficulties, and the negative consequences for all involved.
In Lakhtakia v. Mehra and Knight v. Knight, the Court of Appeal set out many of the more common tactics that Family Court Litigants try use to gain advantage over their exes, but they frequently backfire:
- refusing or trying to hide necessary financial disclosure
- misleading the court, especially in relation to financial matters where objective evidence may disprove the representations.
- refusing to negotiate or making unreasonable offers to settle
- either bringing needless motions, or forcing the other party to bring motions to get compliance with existing obligations under the Family Law Rules
- withholding the children or otherwise using the children to get leverage in negotiations
- refusing to pay appropriate child support immediately, even on admitted income – judges see this as an attempt to improperly get leverage by causing financial distress
- otherwise running up the opposing party's fees and expenses unnecessarily
- refusing to follow court orders
- trying to intimidate the other party through threats of embarrassment, financial difficulties or physical force
Judges who see a separated spouse or parent using these types of tactics will not hesitate to order them to pay all the legal fees and expenses that the other party incurred to rectify the situation.
In the March 2021 changes to the Family Law Legislation, the Federal and Ontario Governments created specific laws to stop separated parties, and especially parents, from engaging in activities that are only designed to harm a former spouse or co-parent. Under section 7.2 of the Divorce Act and section 33.1(2) of the Children's Law Reform Act, parents have a specific legal duty to protect their children from any conflict related to the separation. Those new laws also require separated spouses and parents to try to resolve matters through negotiation or alternative dispute resolution and avoid Family Court wherever possible. Judges really do expect people to treat each other civilly and try to resolve matters on a reasonable basis after they separate. Serious consequences, including hefty orders for the payment of costs to the other party, are the result when someone choses to be vindictive, or even unreasonable.
Separated spouses and parents who want to get the best of their former partner in Family Court need to find an excellent Family Law Lawyer, and listen to that lawyer's advice. The road to success does not involve underhanded, coercive, or dishonest tactics. Judges are likely to pick up on those and punish he guilty party. The best strategy to see an ex beaten down, if not destroyed, in Family Court, is to be seen as the reasonable, cooperative, caring party while allowing the other party to seem mean or vindictive. This does not mean rolling over and giving away everything – judges don't think that is reasonable either. But it does mean getting some advice from a lawyer about how to appear reasonable while working towards the best possible outcome. That can be a difficult tightrope walk, especially in the winds of emotion that come after separation. The best lawyers will tell you what the realistic outcomes are, and how best to achieve them, which may involve avoiding Family Court all together, rather than going on an aggressive attack that is doomed not only to failure but to result in serious repercussions, maybe even an easily avoidable costs award of thousands, or millions of dollars, to help a former partner.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.