Sep 10
20
Abusive judicial incompetence in Ontario’s family law system?
September 17, 2010
Ontario Law Reform Commission Gives Family Law Process a Failing Grade
Ontario’s Law Reform Commission has come down hard on the family law system in that Province. After surveying over one hundred participants in the family law process, including lawyers, judges, mediators, social workers and psychologists, the Commission does not have a lot of good things to say about how family law is done in Ontario.
Chief among the criticisms identified by the Commission is the high cost of family law litigation. The report indicates that if a family law case goes to trial for resolution, the legal fees can be in excess of $100,000.00 (each). This figure is not an exaggeration. In cases where one of the parties will not follow the rules, (which judges are loath to enforce) the costs quickly escalate.
In one of my recent cases my client’s husband refused to cooperate. He declined to produce documents confirming the value of family assets; he refused to answer written questions put to him; and when he was examined under oath most of his answers were “I don’t know or I don’t recall”. For each of these issues, his wife was compelled to go to court to have a judge order him to comply with the law. He still did not.
He was presented with several offers to settle the case that were highly favorable to him. His wife was prepared to waive all interest in her husband’s business, valued at $535,000 and give up her claim to spousal support.
He eventually discarded his lawyer, and purported to act on his own behalf. We later served him with notice that we intended to set down a hearing before a judge that would determine all of the legal issues. He was served personally with all of the court documents, but did not file a response and did not show up in court on the appointed date.
After some gentle persuasion, the court reluctantly agreed to go ahead and hear the case without him, based on my submissions regarding his historical avoidance behavior. After two days of submissions before the court, the judge rendered a decision which gave my client one half of all of the assets, including the business and long term spousal support, with court costs to be paid by him.
We delivered a copy of the court order to him and several days later received notice he had retained a lawyer to go back to court to seek an order to vacate the order obtained by the wife. At this point you may think, like I did, that it was too late. He had refused to cooperate, refused to attend court and should not be allowed to have the process start all over again. But you would be wrong, like I was. The judge decided it would be unfair not to allow him to present arguments to challenge her previous decision.
By this time, my client had spent over $100,000.00 on legal and accounting fees and had to start at the beginning again! If you think this case is an anomaly, think again. This scenario is played out every day in courts across Canada. The Ontario Law Reform Commission is on target with their concerns. The answer? Judges have to enforce the rules that are available to prevent this nonsense. So long as the courts allow this to happen, with little or no consequences to intransigent spouses, it will continue.
What will it take to put a stop to escalating legal fees? Some hard nosed judges. It’s that simple.
Lawdiva aka Georgialee Lang