In the past, I have posted articles on a decision from the Ontario Court of Appeal. The previous posts looked at the impact of false allegations of domestic violence and the impact of RRSP withdrawals on child support. This post will look at the legal costs incurred for this 12-day trial. This is an example of how divorce costs in Ontario rise with refusal to negotiate. The father spent $249,000 on legal fees, while the mother spent $231,000. These high costs were the direct result of the mother refusing to negotiate in good faith.
Why Does Divorce Cost so Much in Ontario?
The couple in this decision married in 2006. They had one child together in 2014 and separated in 2015. As discussed in a previous post, the mother made false allegations of abuse, which created a high conflict environment. These allegations were used to support her position that the father could only have supervised access.
The trial Judge in 2018 found that the father made three separate reasonable offers to settle. In each case, the offer made by the father would have left the mother in a better position than she was in after trial. The first offer was made shortly after separation. Had that initial offer been accepted, combined the couple would have saved nearly $500,000.
The first offer from the father was for joint custody and equal parenting time. Unless there is some significant reason to keep a parent from being involved in decision making, joint custody is a typical result. Since the father ended up with sole custody and equal parenting time, the offer was at the very least a reasonable starting position.
Continue to Negotiate Through the Proceedings
In early 2017, the father made another offer. This time, in an effort to demonstrate his desire to negotiate in good faith, he offered to reduce his parenting time. The goal was to engage the mother in negotiation to resolve the matter without trial. This offer also included a resolution proposal on spousal support, child support and division of property. After trial, the father ended up in a better position on each issue.
In late 2017, the father made one further settlement offer in an effort to avoid an expensive trial. The father offered to waive all of his rights to equalization of property and waived occupation rent the mother needed to pay. In all, he offered to accept $21,000 from the mother to resolve all property matters. After trial, the mother was ordered to pay over $140,000 to the father. In addition to resolving the property matters, the father offered a reduction in his access and child support.
The most important aspect of the fathers offers was that every item was severable. This means that the mother could have picked individual offers to settle to reduce the time needed in court. Offering to sever any issues in an effort to resolve something, is an important aspect of reasonable offers.
What Is an Unreasonable Offer?
In this case, the Judge found that the mother acted in bad faith throughout the process. This included:
- making false allegations of domestic violence;
- Calling 911 to falsely report the father was abducting the child;
- Limiting the father’s access to the child;
- Requiring the father to have supervised access with the child;
- Refusing to provide the father with medical information on the child;
- Making all decisions about the child unilaterally;
- Delaying proceedings by changing lawyers.
All of these things combined painted the mother in a bad light. With all of this in mind, the Judge looked at the mother’s offers to settle. Every offer the mother made included the provision that the mother was to have sole custody and sole decision-making authority. All of her offers were not severable, which meant that the only way the father could accept anything in the offer, was to grant sole custody to the mother.
The mothers position was unreasonable because there was no evidence of domestic violence. Withholding a child from a parent is serious and must only be done in the clearest and most serious of cases. If there are criminal charges, or a criminal conviction, that is a good indicator of the potential of violence. If you have called 911 and the police don’t do anything, take a critical examination of your position, before insisting that you are right.
Refusing to Negotiate Makes Divorce in Ontario Expensive
The Judge reviewed the law on ordering costs. There is a presumption in family law proceedings that costs are awarded to the successful party. The purpose of this is to force both participants to negotiate in good faith. In this case, the Judge ordered the mother to pay $249,000 in costs, a very expensive lesson.
The mother attempted to take this decision to the Ontario Court of Appeal. Her argument was that she wouldn’t be able to properly care for the child if she had to pay the father $249,000. In dismissing her appeal, the Court of Appeal noted that her income was approximately $79,000 per year and that she had just received $100,000 from the sale of the matrimonial home.
How to Reduce the Cost of Divorce in Ontario
Divorce costs in Ontario rise with the refusal to negotiate. If you want to keep divorce costs down, negotiate in good faith. The more that you can resolve without the need of a Judge, the cheaper your divorce will be.
Contact Hearty Law with any questions on your divorce and what good faith means in your case. Hearty Law provides legal services on divorce, custody, access, child support, spousal support, division of property and any other family law financial matter.
Hearty Law serves Toronto, Ottawa and surrounding communities.