Uncooperative Litigation Tactics Lead to More Conflict Than Necessary

A chess board with a fallen king, representing conflict in family law litigation

Most litigants go to court to have their cases properly and fairly considered. However, sometimes parties sometimes employ litigation tactics that are an inefficient use of court resources, oppressive, or malicious. This results in unproductive proceedings and an increased level of conflict. Parties may focus on “winning” in litigation, but courts appreciate clients who remain focused on the relevant facts rather than grievances and who avoid vexatious tactics.

Courts Are on Guard Against Oppressive Litigation

The circumstances of Berta v. Berta gave rise to a discussion about the inefficient use of court resources. The husband repeatedly refused to comply with an earlier court ruling that he pay his ex-wife spousal support of $13,759 a month for an indefinite period of time. His refusal to pay led to a series of court interventions where he contested the support order.

The original nine-day trial occurred in 2013 and 2014, with an appeal in 2015, a re-hearing in 2016, and a second appeal in 2017, where the Ontario Court of Appeal confirmed the original trial court order. Mr. Berta further sought to vary that order before the decision was even released, though he abandoned that application resulting in $80,000 in costs payable to his former wife. When the case came before Justice Pazaratz, Mr. Berta had accrued nearly $500,000 in spousal support arrears and unpaid costs.

Husband Rebuked for “Economic Warfare” in Litigation

The latest motion sought to have the case transferred from Milton to Hamilton, even though the Milton proceeding relating to the same spousal support issues remained active. The wife argued that a multiplicity of proceedings should be avoided and asked for the issues to be consolidated in Milton. Justice Pazaratz rejected Mr. Berta’s motion and rebuked him for his litigation tactics which were described as “economic warfare”. The husband had made the litigation “as complex, unproductive, inefficient and expensive as possible”. It was noted that the husband had no explanation for why he started a motion to change spousal support, then stopped it (causing the wife to incur expenses), and then started it in a different city.

The husband’s conduct was unreasonable, with the Court reminding the parties of Rule 2 of the Family Law Rules, which states that dealing with cases justly includes:

  1. ensuring that the procedure is fair to all parties;
  2. saving expense and time;
  3. dealing with the case in ways that are appropriate to its importance and complexity; and
  4. giving appropriate court resources to the case while taking account of the need to give resources to other cases.

The judge remarked that some cases consume an inordinate amount of court time and judicial resources and that in the current environment courts can no longer “tolerate an inefficient or cavalier approach toward judicial resources. We can no longer overlook or gloss over oppressive, reckless or malicious behaviour.”

Judge Warns that Rhetorical Exaggeration Impairs Credibility and Raises Discord

Family litigation in the normal course can be emotionally draining and too easily erode existing relationships. When litigants aggravate these conditions with personal attacks and rhetorical exaggeration discord intensifies, complicating advocacy and the administration of justice.

These harms were considered in Alsawwah v. Afifi, which dealt with a motion for exclusive possession of a matrimonial home. The father, who had been caring for the parties’ three children, sought exclusive possession of the four-bedroom home. The father and children had been residing in a one-bedroom basement apartment while the mother continued to reside in the matrimonial home. The father proposed switching residences, while the mother wished to remain in the home.

The court proceeded to review the case against the test for exclusive possession, but also acknowledged that assessment was complicated by the fact that one party chose “to attack the other’s character and drag collateral issues into the case with a rhetorical fierceness that one would expect of a mixed martial arts cage match.” For Justice Kurz, the mother was largely responsible for the increased level of vitriol in the materials presented to the court, with the husband originally desisting from similar conduct and only later engaging to a lesser degree. The court found that much of the evidence provided was “unnecessary, excessive, distracting, and unhelpful to the resolution of the issue.” The mother in particular claimed the father to be physically and economically abusive, malicious, a liar and a cheater, and asked the court to find he lacked credibility.

The use of such language raised serious credibility challenges for the mother, with Justice Kurz remarking that she could not speak of the father without pejorative terms to define him. Her language demonized the father and his motivations so much that it was “hard to see the objective truth hiding behind the thick gauze of her denigration.” Rather than enhancing her credibility, her personal attacks diminished it as she lost track of the facts she attempted to convey.

Family Lawyers Should Counsel Restraint When Clients Engage in Personal Attacks

The case reminds parties that once litigation is over the family still needs to pick up the pieces and that everyone loses when conflict is needlessly raised. Justice Kurz had a note to counsel as well, reminding them that their role as an advocate can include counselling restraint when clients wish to raise the stakes with invective and personal attacks. To this end, he offered guidelines on how to lower the rhetorical temperature and aid courts in their decision-making with good advocacy. One key to success in family law revolves around taking the moral high ground, noting that courts appreciate parties who demonstrate that commitment in the presentation of their case.

As these cases illustrate, too often parties get sidetracked by failing to focus on the merits of their case. Resorting to litigation tactics that increase expense and time or pursuing grievances through personal attacks distract courts from evaluating cases on their merits. For judges, these strategies are unwelcome and are more about “winning” than achieving a resolution, which ultimately harms families.

Contact Bortolussi Family Law in Vaughan for Skilled Representation in Family Law Disputes

The divorce lawyers at Bortolussi Family Law have extensive advocacy experience and stay focused on their clients’ goals, even in the face of aggressive litigation tactics. We are skilled litigators that also strive to keep conflict at a minimum to promote a functional family dynamic post-divorce. Our firm proudly serves clients throughout York Region, Toronto, Peel, and Halton Region. To schedule a confidential consultation, contact us online or call 416-987-3300.

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