Being Mean in Family Court Can Cost You – Potentially Millions

Recently, the Ontario Court of Appeal ordered a spouse to pay his spouse over a million dollars, but not in relation to property division child support, nor spousal support. The husband had to pay those amounts in addition to over a million dollars that the Court ordered him to pay to his ex-wife to cover her legal fees. Yes, courts can order one spouse to pay all the costs for the divorce and surrounding litigation. Doing the right things after separation, and in Family Court can create big savings for a separated spouse while denying a “big win” for his or her ex. 

There can be a lot of anger and other emotions in separation and divorce. Some separated spouses head to a lawyer’s office, or to Family Court, in the hope that they can force their ex to live in a box under a bridge. Some even expect that if they spend exorbitantly on legal fees for an aggressive lawyer, they can force their wives and children into homelessness. However, if a judge believes that is a spouse’s goal, the efforts can have the opposite of the intended result.

The recent Ontario Court of Appeal decision in Lakhtakia v. Mehra is not the first time that the Court has ordered one spouse to pay the other spouse’s legal and accountant fees totalling several hundred thousand dollars, even when doing so would cause financial hardship. Ontario Judges, especially Family Court Judges, will make a spouse whom a judge believes has acted unreasonably to pay all of their ex’s expenses in relation to the divorce, child custody or support proceedings. Rule 24(4) of the Family Law Rules authorizes such Orders. The rationale for this rule is, in part, to discourage separated spouses from acting vindictively toward each other, or to reward a spouse for acting appropriately when his or her spouse is not. It is also because these types of behaviours result in more court appearances, both conferences and motions, which not only increase the party’s legal fees and delay the matter but also clog up the court system. Judges feel that parties who do so should provide compensation for wasting everyone’s time. 

Spouses who want to make things difficult for their exes often believe that their strategies are innovative and undetectable by the Court. However, judges, all of whom are former lawyers, sit in court every day, often hearing multiple matters every day, and possibly thousands of matters every year. They have seen many, many attempts to create unnecessary difficulties, and negative consequences for all involved.

In Lakhtakia v. Mehra and Knight v. Knight, the Court of Appeal set out many of the more common tactics that Family Court Litigants try to use to gain an advantage over their exes, but they frequently backfire:

• refusing or trying to hide necessary financial disclosure
• misleading the court, especially in relation to financial matters where objective evidence may disprove the representations
• refusing to negotiate or making unreasonable offers to settle
• either bringing needless motions or forcing the other party to bring motions to get compliance with existing obligations under the Family Law Rules
• withholding the children or otherwise using the children to get leverage in negotiations
• refusing to pay appropriate child support immediately, even on admitted income – judges see this as an attempt to improperly get leverage by causing financial distress
• otherwise running up the opposing party’s fees and expenses unnecessarily
• refusing to follow court orders
• trying to intimidate the other party through threats of embarrassment, financial difficulties or physical force

Judges who see a separated spouse or parent using these types of tactics will not hesitate to order them to pay all the legal fees and expenses that the other party incurred to rectify the situation.