In his costs decision in Jackson v. Mayerle, Justice Pazaratz criticized a divorcing couple who had racked up more than $500,000 in costs fighting over custody of their child. Justice Pazaratz stated:

…pause for a moment to consider the overwhelming tragedy of this case.  These are nice, average people.  Of modest means (now considerably more modest).  They drive old cars and probably pinch pennies shopping at Costco. And yet somehow, between them, they spent more than half a million dollars on lawyers “to have a judge tell us something we could arrange ourselves.” No matter what costs order I make, the financial ruin cannot be undone.  They’ll never recover.  Their eight year old daughter’s future has been squandered.

Justice Pazaratz went on to state:

How did this happen?  How does this keep happening? What will it take to convince angry parents that nasty and aggressive litigation never turns out well?

All good questions, and all good things for divorcing parents to keep in mind, particularly since many custody disputes tend to get emotional and acrimonious.

The Background to the Costs Decision

This was a straightforward divorce. The primary point of contention was custody, which could have been resolved relatively quickly. However, in the end, the trial lasted 36 days, took almost three years, and involved 20 witnesses including teachers, a principal, vice-principal, child services workers, a family doctor, and a custody/access assessor. Justice Pazaratz’s decision granting custody numbered 204 pages and 844 paragraphs.

Briefly, the parties started dating in 1995, began living together in 1997, were married in 2004, had their daughter in 2007, and separated in 2011. Throughout their protracted and bitter battle, each parent sought sole custody, each made a number of accusations against the other, and each questioned the other’s parenting abilities.

Unsurprisingly, each parent’s narrative differed greatly. Ultimately, Justice Pazaratz found the father’s version of events “more credible and accurate”. He viewed the mother’s behaviour as “nothing less than emotional child abuse”, and found that she had embarked on a “campaign to eradicate the [father] from [the daughter’s] life in every possible way.” In his view, the parents were “not equal in terms of parental judgement, fairness, or the ability to put the child’s needs ahead of their own” and the mother was “…manipulative, scheming, deceitful and oblivious to the needless family suffering she perpetuated for at least the last three years.”

Justice Pazaratz granted sole custody of the child to the father.  The father was also given sole decision making authority “with respect to all issues in the child’s life”, including education and health care.

Costs Consequences in Custody Disputes

As we have previously blogged about, there can be significant costs consequences in family law decisions. This case was no different. Here, Justice Pazeratz was as critical of the mother in his costs award as he had been in the original custody decision. He ordered her to pay the father $192,000.00, covering a substantial amount of the almost $300,000.00 the father had spent on this custody battle. This amount was in addition to the almost $200,000.00 the mother had already spent on the dispute.

Costs Analyses in Family Law

The starting point of any costs analysis is the presumption that the successful party to the litigation (here, the father) is entitled to costs. The purpose of awarding costs following litigation is threefold:

  • To partially compensate successful litigants for the cost of litigation.
  • To encourage settlement; and
  • To discourage inappropriate behaviour by litigants.

Judges have significant discretion in awarding costs. The overall goal is an amount that is fair and reasonable for the unsuccessful party to pay given the particular facts of the case rather than what the actual costs of the successful party were. Costs decisions are governed by Rules 18 and 24 of the Family Law Rules.  The reasonableness of each party’s behaviour is taken into account.

Mother’s “Unreasonable” Behaviour

In this case, the father had made a number of “reasonable efforts” to settle the custody dispute with the mother. His numerous offers to settle included a number of the recommendations that had been made by the custody assessor, and would have facilitated the resolution of a number of the emotional issues the mother had which were impacting her parenting. However, the mother rejected all of these offers and “maintained a unilateral and inflexible attitude, despite the negative impact her behaviour was having on the child”.

In addition to failing to accept any of the offers made by the father, the mother also engaged in behaviour that Justice Pazeratz found unreasonable. Specifically, she:

  • manipulated and fabricated evidence
  • advanced dubious allegations with no credible supporting evidence
  • …engaged in provocative and dangerous behaviour, such as stalking and driving behind the [father’s] car after he picked [the daughter] up for access.

While Justice Pazeratz stopped short of finding bad faith on the part of the mother, he found that her behaviour was unreasonable enough to have complicated the case, lengthened the trial process, and was therefore relevant to his decision on costs.

In the end, Justice Pazeratz considered and balanced a number of factors in coming to his costs decision, including the mother’s unreasonable behaviour before and throughout the trial process, and the fact that:

  • the father was more successful on the issues that required the greatest amount of trial time
  • as the successful party, the father was presumptively entitled to elevated costs
  • both the mother and the father must assume responsibility for the trial becoming “needlessly protracted”.

Lessons Learned

Justice Pazeratz fittingly ended his decision with the statement that:

All of this could have been avoided. All of this should have been avoided. Courts have an obligation to deliver that message, so parents will stop pretending that hard-ball custody litigation is “for the sake of the child

Indeed, as we have blogged about before, unreasonable and vindictive behaviour by divorcing parents, particularly when it comes to their child(ren) is not worth it. In previous cases, such behaviour almost resulted in a contempt charge. In this case, it resulted in massive financial repercussions.

If you have questions about cost consequences in family law cases, or about custody disputes, please contact family lawyer Jason P. Howie, online or at 519.973.1500.