Two cases illustrate perils of family law litigation

By Christopher Guly

Law Times

Feb 07, 2005

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‘It’s fundamental to the operations of the court that trust exists between lawyers, and between lawyers and the court,’ says Charlie Chang.

Two recent Ontario Superior Court of Justice decisions illustrate the high cost of family-law litigation.

In Weening v. Weening, counsel representing one of the parties involved in a matrimonial proceeding ended up paying costs personally.

Last November, Justice Margaret Eberhard ordered Susanne Hayward to pay $14,333.34 in costs after it was discovered that in her haste to deliver documents to the court, the lawyer had falsified her client’s signature on an affidavit and then affixed her own signature as commissioner of oaths.

In her decision, Eberhard wrote that “no lie was advanced to the court except, and this is so important, the very underpinning of the court’s reliance on the documents placed before it.”

Hayward, she said, “foolishly put forward the documents with an unspoken assertion that they are what they appear to be [and] foolishly tarnished her own reputation for no particular gain except to get documents filed that she did not have the time to have properly sworn.”

Charlie Chang, an associate with the Mississauga, Ont., firm Thompson, MacColl & Stacy who represented Frederick Weening, presented the motion for costs before the court after his client noticed that the signature on his estranged wife’s affidavit with respect to the motion for interim relief did not appear to be hers.

Once a handwriting expert verified the signature did not belong to Cathy Weening, Chang presented it to Hayward, who initially indicated it was “possible” the signature was hers and later, in her responding material to the motion, admitted she had signed her client’s name to the affidavit.

“It’s fundamental to the operations of the court that trust exists between lawyers, and between lawyers and the court, and that trust not be broken — which it was, in this case, in spades,” said Chang.

Hayward’s conduct was “blatantly wrong,” Chang said, and no less serious an impropriety than if she had shown up at trial purporting to be Cathy Weening.

Chang added that Eberhard’s endorsement reflected “our position” on the motion for costs.

In her decision, the judge wrote: “What would happen to our system if a court had to concern itself with the authenticity of every signature that supported an affidavit? Because counsel are officers of the court and [are] governed by ethical standards, we do not expect to have that problem. When we do, for the integrity of the court, some sanction must flow.”

Eberhard noted that neither of the Weenings “should pay for the consequences of [Hayward’s] deceit” and that Hayward herself “must surely pay the cost of exploring the impact of her foolish conduct.”

Chang said that a “large chunk” of his legal fee for the motion was reflected in the costs the judge fixed on a substantial indemnity basis, at $12,000, plus disbursements and GST.

In her decision, Eberhard also said that “there may never have been a contest that would have attracted an order for costs,” but for Hayward’s misconduct, “rightly or wrongly, righteously or opportunistically,” resulted in “costs over and above the usual cost of litigation that parties must expect to pay for the represented resolution of their disputes.”

The amount awarded to the husband “highlights how costly parties can make it to litigate family law matters,” said Eva Frank, who represented Hayward, and noted that her client worked pro bono on behalf of Cathy Weening.

“This case involved a husband and wife with extremely limited means, and reflects a disproportion between the assets of both parties and what it costs to litigate,” said Frank, of Toronto’s Genest Murray LLP.

“Justice Eberhard seems to acknowledge that the parties in family law litigation, driven by their animosity towards each other, are more likely to escalate their disputes. Here the affidavit resulted in the husband undertaking extensive and costly litigation.”

In her decision, the judge stated that Hayward must bear “the cost of ambiguity,” since “time spent on the conduct issue became so intertwined” with time devoted to the settlement of the matrimonial dispute.

In MacGregor v. Stone, the respondent, Mark Stone, was ordered to pay an even larger amount as part of his former spouse’s legal expenses in a case involving the primary residence of their now-nine-year-old daughter, Taylor.

Last November, Justice Joseph Henderson ruled that Kim MacGregor was entitled to partial indemnity costs in the amount of $62,777.35 for the entire action, including the 10-day trial.

Henderson made the decision despite the fact that MacGregor’s written offer to settle, delivered 19 days prior to the start of the trial last June, was neither signed by MacGregor nor her lawyer, and technically did not comply with Rule 18 of the Family Law Rules, which presumes that costs would be awarded to an applicant, although at the discretion of the court.

But Henderson said MacGregor had made a “reasonable offer,” and he took into account the fact that “both parties acted in good faith in an attempt to deal with the best interests of the child, and that the trial process was expensive for both parties.”

Nevertheless, in his decision, the judge also said “Stone’s ability to pay is not a significant factor” since Stone, an independent conference organizer, “has the assets to satisfy an award of costs”

J. Leigh Daboll, who represented Stone, said he was “troubled” by the precedent that may be set by Henderson’s ruling.

“We have moved beyond a point where custody and access costs in good-faith family law proceedings are level to the penalty against what’s perceived to be the losing parent. This decision seems to imply that costs have been levelled to a point where they are nothing more than a mechanism for recovery of the other side’s legal fees.”

In this case, “no fault was found on the conduct of both parties,” said Daboll, a sole practitioner in Pelham, Ont. He has appealed Henderson’s decision to the Court of Appeal for Ontario.

During the trial, Stone wanted his daughter to move to Colorado, where the family once lived, or, alternatively, have the girl attend school in Grand Island, N.Y., where he now lives. MacGregor insisted the child stay in school in Niagara Falls, Ont., where she and Taylor have lived since moving from Colorado more than five years ago.

Concerned about the “diminished role” he had in his daughter’s life, Stone moved from Colorado to Grand Island, and following four years of litigation, obtained an interim order for joint custody and equal residency, according to Daboll.

At trial, he said, Stone “made an extraordinarily generous offer” to relocate MacGregor to Colorado, where she would be able to live in a house Stone owns, so MacGregor would not be geographically separated from her daughter.

As well, Daboll said, a custody-and-access assessment conducted by Ontario’s Office of the Children’s Lawyer determined that Stone should have custody of his daughter, including the ability to move back to Colorado with her.

However, Diane Klukach, who represented MacGregor, said a Colorado court granted her client the right to determine where the child would attend school as part of a divorce settlement, and that Stone agreed to allow MacGregor to move with Taylor to Ontario in August 1999.

“But no sooner did they get here than he changed his mind, and Ms. MacGregor has been in and out of court ever since,” said Klukach, of Cassels Brock & Blackwell LLP in Toronto. “My client could ill-afford this.”

Klukach conceded that the costs (including a total counsel fee of $50,000) awarded to her are “high,” but believes there is an “important precedent” set in Henderson’s ruling.

“Take an unreasonable position, and you’re going to get slapped with costs.”

Readers can order the judgments cited in this article by calling our CaseLaw Service at (905)841-6472.

Weening v. Weening Order No. 004/343/028, pp. 3;

MacGregor v. Stone Order No. 004/331/015, pp. 3.