Gelman & Associate's statement regarding COVID-19 - Read More

One of the smaller impacts COID-19 has had on family law is the underscoring of how backlogged the courts are with family law cases, and how parties involved in intense bickering and litigation can clog up the courts, preventing other matters from being heard quickly, and eating up both the parties’ resources as well as those of the courts. In a recent decision from the Ontario Superior Court of Justice, the court refused to reopen a matter between two parents who had been litigating for an extended period of time.

No trust between litigious parents

The parties involved have appeared before the courts on numerous occasions as they worked through the division of their property as well as issues around child support and access. In a decision issued by the court in June 2020, the judge wrote that even in the middle of the COVID-19 pandemic, “parents are pounding on the family court door, begging us to open up so they can get a few more kicks in.” The decision highlighted the animosity the parents held towards each other as well as their mistrust. However, the decision ultimately resulted in an order that the matrimonial home be sold, which was something the mother had been fighting against.

Mother asks to stay in house

The parents were supposed to be back before the court in January 2021 in order to finalize plans to sell the home. However, the mother told the court that the motions judge involved at that time did not grant her an adjournment as requested so that she could attend court in person. She also argued that the court had failed to consider the best interests of the children in relation to parenting time orders.

Should the court have adjourned the matter?

The court was not very sympathetic to the mother’s request for an adjournment, stating that she had filed an extensive affidavit and was represented in court by her lawyer. The court also stated that that had been a substantial history of delays caused by the mother. In previous hearings, she had requested adjournments four times and had failed to cooperate with the court’s past order to participate in selling the house. The court found that there was no need to have adjourned, stating that in addition to what was already described, the scheduling was fixed ahead of time and the motions judge did not see any reason as to why it should have been adjourned.

Did the motions judge err in not considering the best interests of the children?

When a court makes an order on a matter such as what happens to the matrimonial home, the best interests of the children should inform the decision. The mother’s argument was that the judge had not used the term “best interests of the children” and therefore the order to sell the home should be set aside. However, the court stated that while that exact phrase wasn’t used, it “is clear that the motion judge was aware of, and applied, that test.”

The court’s refusal to allow the mother’s appeals on these grounds serve as a great reminder that at times, it’s best to not try to relitigate matters. If anything, parties should consider collaborative approaches to family law matters in order to avoid lengthy delays and costs that can come with going to court (nevermind multiple trips). In this case alone, the mother was handed a tab of $10,000 to cover legal fees incurred by the father for this hearing.

Divorce often conjures up images of nasty disputes between both parties. The Collaborative process, however, is a team approach to resolving legal issues.  Both spouses each engage a collaboratively trained lawyer and work together through a series of four-way meetings to arrive at a mutually satisfactory Separation Agreement. To book a consultation with one of our experienced Collaborative Family lawyers, please contact Gelman & Associates at (416) 736-0200 or use our contact form online.

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