In a reported fairly recent decision, (W.S. v. P.I.A. [2022] O.J. No. 11) following a lengthy trial in the Superior Court of Ontario, the mother and father filed documents with the court which showed that they had spent a total between them of $1,552,987 in legal fees. This figure did not include the fees of other experts whom they had retained. When those fees were added in, the total costs approached $1.7 million.
At the end of the trial, the father was successful in obtaining parenting time and decision making authority over the children. He therefore asked the court to have the mother pay him his costs of the proceeding. The mother was found to have taken an unreasonable approach to the litigation, an approach which she ought not to have taken and which was not in the best interests of the children. The father had made an offer to settle the case before the trial which the mother did not accept. The result at the trial was better for the husband than his offer to settle. Accordingly, the court found that the mother should not only pay the husband’s costs of the entire proceeding but that she should pay on a “substantial indemnity” scale which meant, in the end, that she pay him a total of $677,610 to compensate him in part for his legal fees. As she lost the case, she also had to pay her own lawyer what she claimed was over $600,000. So she was out over $1.2 million because she decided to fight the case in court.
Many experts now agree that the adversarial approach to parenting disputes, such as litigating the issues in the court system, often causes more harm to children than the separation of their parents. In court, parents are in effect “at war” with each other. They are caught up with slinging as much mud at the other parent as they can think of. Much of that mud has nothing to do with the children’s needs, cares or wants. As the litigation goes on and on (it can take years to have a case go to trial these days), the enmity between the parents grows. They exaggerate evidence if not fabricate it, to strengthen their position. They usually seek to persuade the children to “take their side” of the dispute. Thus, the children become directly involved in the conflict. No thought is given to what toll it takes on their children to be asked to stop loving the other parent. When they were together, there was no issue with leaving the children with the other parent while they attended to chores away from home. Suddenly, when the separation occurs, that same parent is incapable of looking after the children and needs “supervised” access.
All that is to say that there is a better way to resolve parenting issues, even in cases of high conflict, so long as that conflict is not such that one parent is physically or mentally abusing the other. In the majority of parenting cases, mediation offers a much better form of resolution. Mediation can provide an education for the parents on what their children are experiencing as a result of the separation. The children’s voices can be heard at the mediation itself through the use of qualified professionals who can speak to children and help the parents understand what they are going through. The law does require that the children’s views and preferences be taken into account when crafting the parenting plan. Many parents don’t know this. Mediation of parenting disputes is meant to help the parents focus on the needs of their children and put those in priority to their own needs. When parents strive to do this, they find a better way and better solutions for the sake of their children. The conflict finds a way to an end and they can save the family fortune $1.2 million dollars.
– Tom Dart, Mediator & Arbitrator
