Family

Being unco-operative in court can be costly: Shinehoft

By Tony Poland, AdvocateDaily.com Associate Editor

A man who was ordered to pay his ex-wife almost $500,000 in court costs for being “unreasonable” during divorce proceedings should serve as a warning to others, says Toronto family lawyer Elinor Shinehoft.

Shinehoft, principal of Shinehoft Law, says there can be plenty of “emotions in family law, and some people are just angry and vengeful.”

However, it can be an expensive proposition to try and take your wrath out on your ex-spouse in a court of law, she tells AdvocateDaily.com.

“This case should be a warning to people who want to use the court system for the wrong reasons like vengeance,” she says. “You can play mean, but some judges are going to call you on it.

“I think the more that cost damages like this happen, the more it will serve as a deterrent. Courts are saying this isn’'t what the system is meant for,” Shinehoft says. “It’s not a platform to torture a person because you’re upset with them.”

The Ontario Court of Appeal refused to reverse a lower court decision awarding a woman $490,000 in costs after “hard-fought — and expensive — matrimonial litigation.”

“The trial judge placed the blame entirely at the feet of the appellant, whose approach to the litigation he characterized as unreasonable: “[the appellant’s] tactics coupled with his unacceptable offers to settle, leads me to conclude that his goal was to ensure that [the respondent] suffer a considerable financial defeat even if she enjoyed success at trial,” states the decision.

Court was told the woman in the case spent $265,000 on legal fees and another $228,000 on an accounting expert, much of it “chasing disclosure, which was a significant problem.”

The woman “delivered an offer to settle prior to each stage and demonstrated she was prepared to settle the case on a reasonable basis,” according to the judgment.

“If someone’s unreasonable, you still have to go through all of the steps. You can’t just say ‘Well, this doesn’t apply, let’s go to the next step,’” Shinehoft says. “This woman was put through so much expense trying to get the information she needed.”

She says the woman showed court that she was acting responsibly by making rational offers to settle during the proceedings that were repeatedly rejected.

Shinehoft says, “Some people will try to wait it out until the other side just doesn’t have any money” left to continue the court battle.

“The costs penalty is one of the only ways that a court can really punish someone for not listening or not following the rules,” she says. “If someone is showing that they are deliberately delaying or being unco-operative, court has the discretion to address that through a cost award.”

Shinehoft says she finds divorce cases that go to court can become bitter and costly. Although she encourages clients to consider alternative dispute resolutions, sometimes court is the only option.

“You may have a spouse that is just not reasonable, and you can’t negotiate with them,” she says.

However, going through the court system can come with an unpredictable and expensive price tag, says Shinehoft.

“I tell clients that I can’t estimate how much the cost will be because I don’t know how the other person is going to respond, how reasonable people are going to be, or what’s going to come up. There are just too many unknown factors,” she says.

In the end, it’s up to the client to decide, but Shinehoft says she prefers negotiation to confrontation.

“I always try to push my clients away from court. I tell them why I am settlement-oriented,” she says. “You actually tend to get better results in a less expensive way through alternative means.

“I’m a big proponent of mediation, collaborative law and negotiation. I always tell my clients right away that I will do everything possible to keep their file out of court.”

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