Canada: Father Obtains Custody of Children and Is Awarded Almost $700,000 in Costs

In an extraordinary case, a Canadian court has ordered that two sons aged 5 and 7 live with the father and that the mother pay the father $677,610 (A$719,547) in costs.

The trial Justice Heather McGee of the Ontario Superior Court presided over the trial, which lasted 39 days and was the culmination of five years of court battles.

THE TRIAL

During the whole of the case, the mother professed to strongly support the children in spending time with the father but then did everything to the contrary.  Justice McGee described the mother and her brothers as having a winner takes all attitude.  At her insistence, time with the father was supervised.  Her Honour found that the father was the only parent able to foster and protect the boys’ emotional wellbeing and that he was the only parent willing to support the children’s relationship with the other parent.  Justice McGee did not find that the mother’s allegations of physical, financial and sexual abuse were made out.  She accepted that the mother was verbally abused during the marriage and that she experienced emotional abuse, but in considering the timing, duration and nature of that abuse and the evidence of the father’s improved parenting over the past five years found that the father’s abusive conduct during the marriage had no impact on his present ability to be a primary caregiver and decision-maker for the children or to cooperate with the mother on parenting issues.

The court found that there needed to be a 90 day cooling-off period between the mother and the children, followed by a stepped-up parenting plan.

In the words of the court:

“Throughout the course of this litigation right through to the last day of trial, the mother presented two paralleling and competing narratives.  In her court attendances of the past five years, she has formally stated that she wants her sons to have a relationship with their father and, in furtherance of that assertion, she has consented to orders for various services and parenting schedules intended to normalize the children’s parenting time with their father.

Away from court, the mother has intentionally acted to undermine the agreed, court-ordered parenting schedules and has twice attempted to sabotage reunification counselling with false allegations of sexual abuse designed to terminate the children’s relationship with their father.  Specifically, she has made a series of escalating complaints of physical and sexual abuse of the children by the father [to authorities] all have proved to be unfounded.  In her most damaging act, she caused her six-year-old son to make a false allegation that his father was sexually abusing his four-year-old brother.

By the conclusion of this trial [the mother]’s narrative that she wanted her sons to have a relationship with their father had entirely collapsed.  In reality [the mother] has never wanted any such thing.”

The court concluded, regrettably, that the mother had acted in bad faith.

Furthermore:

“The parental conflict of these past five years and specifically the emotional harm caused to [the boys] by the mother and her brothers’ conduct has been dramatic and traumatic.  The emotional health of both sons has been compromised, and the psychological well-being of the oldest son may be in crisis.  At six years of age, he brandished a knife at the family babysitter while proclaiming that he was ‘the man of the house’, and he continues to be abusive towards both his younger brother and his mother.’  But for one of the mother’s witnesses, the judge found that all of the mother’s witnesses ‘were either allies, dupes or well-meaning persons whose evidence concerning the issues in this litigation was shaped by the selected misinformation provided to each of them by the mother’.”

An example of the problems that happened occurred on every supervised access visit:

1. The mother, usually driven by one of her brothers, was routinely late.  Sometimes she would give notice, and about a quarter of the times that she was late, she agreed to extend the visit.
2. During the family transition period, there were a total of 131 visits.  Of those visits, the mother did not attend 37 and was late for 49.  There were never any makeup visits offered.
3. The father was always early for the visit, well prepared with activities, toys, books, food and snacks for the children.
4. Until the end of 2018, the elder child almost always showed some initial resistance to transitioning.  As time progressed he became increasingly physical in his resistance to leaving the car, kicking and screaming and occasionally biting his mother.  Sometimes the mother would ask the supervisor what to do.  The mother would always insist that the child’s resistance be reflected in the notes.
5. Neither the mother nor her brothers would ever remove the elder child from the car despite the fact that he was four and then five when he was showing resistance.  Instead, the mother would talk to the elder brother while her brother looked on.
6. No matter how difficult the transition was, once in his father’s care and out of sight of their mother, the father was successful in calming the eldest son through distraction and engagement.
7. The younger child was never resistant to a visit and was always the first out of the car, toddling, then later running to meet his dad.
8. The boys enjoyed the outdoor physical play, endless activities including building Lego, games and selecting from a large selection of purchased and homemade food.
9. Father and sons were observed to laugh together and to be genuinely affectionate with one another and with their paternal grandmother.
10. From time to time the father needed to correct the elder son who could be stubborn or engaged in unsafe play.  He was observed to use good parenting skills and was always able to resolve the situation.
11. There was never a safety concern observed in almost 200 visits.
12. The notes are full of joyful moments:  the boys wrestling with their father, dancing to music, playing in a backyard pool, riding bikes, reading books, snacking, decorating and eating cake.
13. The supervisors who testified at the trial all reported successful, child-centred visits and gave each visit a nine or a ten out of ten scores.
14. The mother or her brother was always on time for the pick-up.

THE COSTS AWARD

Once the trial was done and dusted, the parties had spent over $1.7m (A$1,794,511) between them, including losing their house in legal fees.  What they had spent way more than they owned.  Most of this, not surprisingly, was spent by the father.  The trial at nine weeks was one OF the longest parenting trials heard in Ontario.  The father was wholly successful.  The father made a number of offers during the course of the matter.  The amount of legal fees that were included in his claim was $886,389.  By comparison, the mother had spent at least $450,000.

The mother made a number of offers but they were not reasonable.  Part of the findings by the judge was:

“By this stage of the proceeding, it was clear that [the mother]’s family therapists as litigation allies, not as sources of learning and personal growth.  As soon as the therapist challenged her approach, the therapist was rejected, usually with a corresponding complaint to his or her regulatory body.”

After the trial, the mother denied any time between the father and the children.  Justice McGee stated that the mother’s refusal to allow time after the judgment was reserved:

“was entirely unreasonable litigation conduct.  By the time that the decision was released, makeup time alone would have justified some period of primary care reversal.”

Whilst the father was entirely successful, her Honour went on to say:

“The analysis must go beyond a simple assessment of success.  In parenting decisions, success alone is not a sufficient basis for an award of costs because the measure of success belongs to the child.  It is the child’s success that is the object of the proceeding.  Orders for decision-making, parenting plans and incidentals of parenting are formulated on the child’s best interests, not a parent’s best interests.  In this manner, a parent may be successful – may even beat his or her offer to settle – yet not be awarded costs, or be granted a reduced amount of costs for any number of reasons, such as the prospect of a costs award further exacerbating mutual parental conflict, hobbling a primary care parent’s ability to meet the child’s financial needs or reflect in the court’s disapproval of an unreasonable course of litigation conduct.”

Her Honour said:

“A successful litigant is a parent who respects the child’s ongoing attachment to his or her other parent while uncoupling from that parent as a former partner.”

The mother said that she could not afford the costs as she only had $50,000 available to her.  That was rejected by the court:

“At no time did [the mother] conduct herself as a litigant on limited means on the parenting issues.  On the contrary, her litigation decisions were funded on a ‘win at all costs’ basis thanks to a personal injury settlement, her equity in her home and her brothers’ determination to ‘do whatever it takes to keep their nephews safe.’

Hiring private investigators to report on court-ordered access supervisors and arranging for a formal counsel to monitor the whole of the nine-week trial are not marks of a client of limited means.  Neither is that the action of litigant of limited means to incur three days voir dire [a legal mini-trial about the admissibility of evidence] in an attempt to admit five year old surreptitiously obtain recordings, or a lengthy motion to obtain the other spouse’s personal counselling records whilst shielding production of One Zone Counselling records.

Family law litigants are responsible not only for their litigation positions but also for the financial consequences to both parties of funding those positions.  A former spouse who engages in ‘win at all costs’ litigation chooses to be as answerable for the resulting litigation fees to the other side as for one’s own fees.

[the mother]’s litigation conduct, partially funded by her brothers resulted in recklessly disproportionate litigation costs to [the father] the case that [the father] was required to meet exceeded any reasonable enquiry into the parenting plan that best met the children’s interests.  Instead, it was an exploration of the use of surreptitious recordings, assessment methodology, access supervision, access supervision note-taking and child protection:  all in pursuit of a final order that [the mother] and her brothers continue to exercise absolute control over [the father]’s parenting time.”

FINAL COMMENT

Let this case be a warning to those who have a win at all costs attitude and try to dredge up every last piece of mud to throw at their former partner.

Whilst Australia does not have a bad faith basis for making cost orders, following the creation of the Federal Circuit and Family Court of Australia, I anticipate that costs orders in parenting matters will be much more common.  

Sadly, we have acted for parents where the other parent has sought to positively exclude that parent from the child’s life whilst at all times maintaining the opposite.  These cases at times require large amounts of work to overcome all the hurdles placed by the other party.