In a recent decision following one of a series of emergency support motions related to child and spousal support, Justice Pazaratz expressed frustration with the approach that an on and off couple had taken to the outstanding issues between them, stating:

Endless motions for temporary orders with no apparent interest in proceeding to trial – this emerging trend is protracting litigation, driving up costs, frustrating litigants, and needlessly placing judges in the untenable position of having to decide complex issues based on inadequate information. 

What Happened?

The parties are the parents of two children (aged 10 and 8). They were married in 2006, and separated for the first time in 2010. Following this initial separation, they obtained a court endorsement in Milton severing their divorce application from related relief issues. This endorsement was never turned into a formal court order as the parties reconciled a short time later, and seemed to forget about their court action.

The parties separated again in June 2016, and the husband filed a new application in Hamilton seeking a resolution to the same issues that had first arisen in 2010. Both parties aggressively pursued parenting issues through a series of motions, including a long motion by the mother for comprehensive relief related mainly to spousal and child support.

At the start of the hearing of the long motion, Justice Pazaratz encouraged the parties to take some time and try to settle some outstanding non-contentious issues, which they were successfully able to do. However, Justice Pazaratz quickly took issue with what transpired thereafter, namely, the parties’ approach to the outstanding claims for spousal and child support.

Delayed Action

Justice Pazaratz noted that even though there had been a series of motions commenced “since literally the day after separation in June 2016”, the mother had not made a formal motion for temporary spousal or child support until April 2017.

Prior to this formal motion, at a Settlement Conference which had taken place in February 2017, the parties essentially chose to put their case “on hold” and were told to arrange a further Trial Management Conference when they were ready, and if such a Conference was necessary. Justice Pazaratz noted that, since then, the parties had done nothing to advance their case to trial, but that, with the filing of the mother’s long motion, had “suddenly asked the court to address complex support issues in which credibility, factual determinations, and the legal effect of the 2010 Milton order were hotly contested”.

At the motion hearing, the father’s lawyer asked that no order on support issues should be made, and requested such issues to be adjourned to be dealt with at another Settlement Conference. The mother’s lawyer objected to any adjournment on the basis that there had already been one Settlement Conference, and because the father should not be permitted to “stall” the outstanding support issues any longer since he hadn’t paid any support since the 2016 separation date.

“This is not how court cases are supposed to proceed”

In response to the parties’ respective requests, Justice Pazaratz noted:

There is no legitimate reason why the parties should present all of these complex issues to the court by way of such voluminous, conflicting and incomplete affidavit materials at such a late stage in this action.

He further noted that:

  • Each party complained about inadequate and/or late disclosure by the other party, but neither took sufficient steps to either produce or compel disclosure in a timely way;
  • There are factual disputes which could have been tested by Questioning at trial, but the parties chose not to take such a basic and obvious step;
  • On the morning of the motion hearing, and just before entering the courtroom, the mother’s lawyer revealed to the father’s lawyer, for the first time, that the mother had just started a new job.  Her financial situation would now be completely different but her lawyer provided no disclosure as to what her new income was.

Justice Pazaratz additionally noted, that “this is not how court cases are supposed to proceed”. If the parties had raised their support claims following their separation, both the disclosure and other factual determinations could have been addressed a long time ago. Similarly, had the parties not adjourned their matter in February they would likely have had a trial date within weeks of that Settlement Conference, which would also have given them a chance to thoroughly address all outstanding issues.

Justice Pazaratz further stated that:

Motions for temporary relief are often an unavoidable but notoriously imperfect method to address urgent issues, where parties haven’t had enough time to fully prepare their case, and/or where the court system doesn’t have enough resources to give litigants an early trial.  Proceeding by way of motion shortly after separation is understandable. 

But if parties elect to take a lackadaisical approach; if they do nothing to advance their case for months and months; and if they adjourn their case to the timelines thereby forfeiting opportunities for timely resolution – then at a certain point they may lose the right to expect judges to wrestle with inadequate affidavit materials on busy motions lists.

Don’t wait almost a year and then suddenly call it an emergency [emphasis added].

The Decision on the Motion

Justice Pazaratz recognized that he was not able to fully determine the outstanding factual and legal issues, but, had to create a “temporary regime based upon imperfect evidence” because no spousal or child support had been paid for more than a year in a situation where there was clearly a need for those payments, and an ability to make them.

The judge ultimately made a temporary order with respect to spousal and child support, with the final decision on both to made by a judge at trial. He also ordered the parties to immediately contact a trial coordinator and schedule an additional day of proceedings.

If you are considering separation, or have already begun the process, contact the knowledgeable and experienced family law team at Jason Howie. We can proactively advise you on critical issues such as child support, spousal support, and related matters. Call us at 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.