In a recent case, a judge of the Superior Court of Justice outlined certain behaviour of a respondent-husband that had a real impact on costs. I will concentrate on the behaviour because, during my years on the bench, I was always surprised by lawyers and their parties who were oblivious to the impact their conduct, both prior to and during litigation, would likely have on their case.
In litigated cases, a party may have costs awarded against them due to unreasonable behaviour. As well, unreasonable behaviour may be used to set the amount of costs against a party. One of the purposes of costs is to penalize a party who has behaved unreasonably.
In this family law case the respondent-husband, a doctor, made little secret of their contempt for the wife and lack of regard for them. His practice of asking the wife to pursue employment was unreasonable in the circumstances of the case. Urging the wife to move to British Columbia, from Ontario, with the children, to work as a teacher went “beyond the pale” and showed little regard for the children’s needs.
The husband also told the wife they should not pursue a career in medicine but should consider pharmacology. In this case, such behaviour was found to be highly unreasonable.
The husband engaged in alienating the children, soon after the separation, by sending e-mails to them about their behaviour. This was found to be inappropriate especially given that the husband accused the wife of alienating behaviour during the proceedings. This conduct meant the wife had to do more than her fair share of looking after the children. Such behaviour affected not only the costs awarded but also the amount of compensatory support. The husband also ceased paying court-ordered support which had to be enforced through the Family Responsibility Office.
In addition to the above, the judge found that the husband engaged in poor litigation conduct. First, having agreed at the Trial Management Conference to deliver the evidence-in-chief by way of affidavit, they neglected to do so. This meant the trial was lengthened. The judge also found that the wife had to do a disproportionate amount of work towards the settlement process. They also had to provide financial documentation for trial, as the husband never entered his Financial Statement or tax returns as trial exhibits. The wife had to do much of this in the affidavit, but, being forced to give viva voce testimony at trial, the Court had a difficult time finding documents.
It was the wife’s templates that were used to assist the Court in terms of support issues; the husband had not done the necessary work. As a result, the judge found that the wife did a disproportionate amount of work in preparing the necessary documents for trial.
It is often a difficult task for a trial counsel to save someone from their own behaviour. Given the conduct in this case, it may have been wise to mediate the issues, although the conduct displayed would have been equally difficult for a mediator.