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Family

How much is too much?

By Lisa Gelman

How much money is too much money to spend battling your ex?  How much time is too much time to spend battling your ex? How much conflict is too much conflict to endure while you battle your ex?

A cautionary tale for parents

M. v. F., a 2015 decision of the Ontario Court of Appeal, dealt with the issue of whether a six-year-old boy should have overnight visits with his allegedly violent father. This case has been described as “a cautionary tale for parents who would rather fight than settle.” The Toronto couple in M. v. F. spent over $2 million in a 34-day trial (followed by an appeal to the Ontario Court of Appeal) waging this battle. Not only did they use an excessive amount of their own resources, the couple arguably used an excessive amount of courtroom resources as well.

The mother sought to restrict the father’s overnight access on the basis that he had been diagnosed with narcissistic personality disorder and had a drinking problem. She also alleged that he had attempted to strangle her during sex, ripped out her earrings, dragged her downstairs, and hit her in the face. Further, the mother attempted to critique the father’s expert psychologist’s report with her own expert’s evidence — psychologist Peter Jaffe (who had not met the child) recommended against the overnight visits until such time as the father completed certain treatment for his disorders.

At trial, the father was successful in his bid to have overnight access to his son. Justice Whitaker of the Ontario Superior Court of Justice granted the father’s access in spite of the mother’s allegations of violence, reasoning that:

  • The father was raising three other children safely;
  • The child was already spending many daytime hours with his father without incident; and
  • A respected child psychologist who had been working with the family since the boy was an infant recommended the overnight stays.

On appeal, the mother was again unsuccessful. The Court of Appeal agreed with the trial judge’s ruling, and also made a statement about the mother’s critique evidence, stating that it is rarely appropriate, lacks value as evidence, adds expense, and risks elevating the animosity between the parties.

Too much:  The money. The time. The conflict. The impact on the child.

The money: The trial judge ordered the mother to pay $500,000 towards the father’s legal costs (he had asked for $900,000). The Appeal Court upheld this cost order, and ordered her to pay an additional $40,000 towards the father’s appeal costs (he had asked for $160,000).

The time: In addition to the 34 days at trial and the time spent preparing for and arguing at the appellate level, one can only imagine the countless hours spent by the parties, their lawyers, the experts, and even the child focussed on this case.

The conflict: The parties were clearly waging a war against one another. Their relationship was described as toxic. They treated each other cruelly and disrespectfully. Both parties admitted they lied at various points in the litigation, and that they engaged in inappropriate conduct such as sending threatening videos, passing on false information about the other’s personal life, sexual practices and drug habits, and installing video cameras to watch drop-offs and pick-ups of the child.

The impact on the child: The child psychologist who saw the child on several occasions noted that his original precocious and sociable nature had changed to an apprehensive, shy, and somewhat fearful demeanour. The doctor attributed this change to the child’s continued exposure to instability, parental tension and conflict. The toxic relationship between the parents and their protracted and bitter dispute directly impacted the child’s well-being.

Take a step back

No one should fault a parent for wanting to protect his or her child or wanting to spend time with that child. However, at a certain point, when things seem to be getting to the point of too much, one must step back and objectively evaluate the true costs and benefits of refusing to settle.

If you have any questions about custody and access, collaborative family law, or any other family law matter, contact the experienced lawyers at Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.

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