Custody Trials and Costs

The case of Tipping v. McNutt is a cautionary note to parties who lengthen family law hearings by raising irrelevant concerns. The case is a November 2009 decision of Justice Zisman of the Ontario Court of Justice. Justice Zissman issued the supplementary decision dealing with costs after the release of Her September 2009 trial decision.

The case was a claim for custody by the maternal grandparents. They lost. The mother (their daughter) asked for her “full indemnity” costs of $34,000.00. The grandparents argued that they should be spared a costs order against them because they had exhausted their life savings pursuing the litigation.

Justice Zisman faulted the grandparents for “relentlessly” attacking the mother over a multitude of unproven or irrelevant concerns. The trial lasted 18 days!

In these types of cases it is not unusual to see parties engaged in a nasty, the ‘gloves come off” kind of fight. Justice Zisman reminds us that while custody disputes can be brutal, they are not wars of attrition. Parties should be be focused in their trial strategy, or suffer the costs of raising irrelevant matters that lengthen trial proceedings. Justice Zisman writes:

 

The matter was obviously very important to the parties. But the case was not particularly complex or difficult. It was solely as a result of the approach by the grandparents that this trial took 18 days to complete. Many of the concerns presented by the grandparents were unproven or irrelevant to this proceeding or to the relief they sought. Others were trivial. The “concerns” seemed relentless. Taken together, they unnecessarily extended the proceeding and added to the expense of the proceeding. Nothing about the mother’s childhood, educational pursuits, choice of boyfriends, employment history, personal medical history and lifestyle was left untouched. Nothing about Austin’s medical history, educational progress and counselling was left unexplored. Even when the school and medical records revealed no concerns, various teachers and medical professionals were called to present evidence. That is the choice the grandparents made in developing their trial strategy and in pursuing this litigation. Choices that are unreasonable or unnecessary and lengthen the proceeding for other parties should attract consequences. Not to impose consequences on such choices effectively encourages them. After being unsuccessful in this trial, the grandparents can now not assert that they have exhausted their life savings during this litigation and a cost order would further drain them financially, create a financial hardship and prevent them from directing funds for the benefit of Austin. These are the consequences that should have been considered before and during this protracted trial.


Costs awards should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”
. In this case, because the mother failed to make an offer to settle, she failed to get full indemnity costs and instead was awarded $25,000.00. Both parties were represented by counsel, so one wonders to what extent the grandparents were responsible for the bad outcome.

On another interesting note, Justice Zisman cited the Court of Appeal’s decision in Serra as authority for the proposition that costs should be fair and reasonable. If you read below, you will see an entry about Serra from last February. The Serra case is important because it allowed an unequal division of property because of post-separation decline in the values of assets. In the case of Serra, the decline was caused by market forces.

A lot of lawyers thought that the decision would open the “flood gates” for claims for unequal property division (especially in these economic times), yet that hasn’t happened.

After almost a year, I’ve only come across two cases where Serra has been cited and relied on by lower courts. In both cases, Serra was cited on the costs issue alone. There has yet to be a case where Serra has been authority for an unequal property division. So much for flood gates.

 

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