Court is Critical of Husband’s Aggressive Litigation Tactics

Written on behalf of Arbesman Hamilton LLP

We previously wrote about a case working its way through the courts where a father was seeking to settle their separation through First Nations laws rather than through the courts. When we last left the couple, the Court of Appeal had allowed the father to pursue his constitutional claim that the matter be resolved by First Nations laws, but required him to pay interim spousal and child support in the meantime. The couple were recently back before the courts, where the husband was criticized by the judge for his tactics.

Recent developments

The husband and wife had been going through a separation for an extended period of time, with a number of appearances before the courts. The Ontario Court of Appeal commented in a 2018 decision about the husband’s ability to pursue a constitutional challenge, writing:

“[78]      This case has developed into a procedural morass, to which both sides have contributed. A phalanx of lawyers appeared before us. The parties have made no effort to save expense or time as required by ss. 2(3) of the Family Law Rules: Titova v. Titov, 2012 ONCA 864 (CanLII), 299 O.A.C. 215, at para. 54. Their tactics have led to a proliferation of materials, skirmishes and arguments that the Rules seek to avoid. This must not be permitted to continue.

[79]     The case going forward requires active and determined case management, with a view, in particular, to avoiding the sort of free-ranging general inquiry Binnie J. deplored in Lax Kw’alaams Indian Band. We were told that this matter is now being case-managed. It will fall to the case management judge, in the first instance, to ensure that this objective is met.

The issue before the court in the case at hand came as a result of a motion filed by the husband requesting a judge from the Superior Court of Justice in Kitchener, Ontario, to recuse himself from presiding over any further matters in relation to the separation.

The court doesn’t buy it

The court’s decision started out by commenting that while it seems like all the husband is asking for is that a judge recuse himself, “in reality there’s obviously more afoot.” The court then went on to comment that the file as a whole has an “enormously complicated” background involving a high-net worth separation, a nine-year-old child, extremely complicated constitutional issues, and more. While the husband was clearly unhappy with a number of decisions by the judge he is seeking a recusal from, the court ruled it was not prepared to deal with the motion, stating instead that the judge named in the motion should determine whether or not he should recuse himself. Furthermore, the court noted that the judge in question was not scheduled to preside over any further matters on the file.

However, the court did want to take the opportunity to address a “threshold procedural issue.”

The real motive

The court went on to state that the parties involved, particularly the husband, should attempt to actually settle the issues related to the separation, rather than spend time and money on interlocutory steps and appeals.

However, the court sensed something more than just money being tossed around on motions. The court stated that the real motive behind the motion is likely a strategy to challenge previous decisions from the judge in question. If he was to be recused from future decisions, the husband would be able to attack his past decisions. The court noted that this was a redundant strategy, since the husband was already appealing past decisions from the judge. More to the point, the court found that the husband was likely attempting to recuse the entirety of Superior Court judges from the case, writing “the (husband’s) ultimate goal is not just to recuse this one Superior Court Judge. The unconcealed objective is to eventually eliminate all Superior Court Judges from dealing with his case.  The (husband’s) sweeping criticism of the judiciary is evident in his motion documents which include the statement: ‘2(gg)(ii) “there is a systemic issue and Judges of the  Family  Court  are not experienced, nor do they understand life on the Reserve and the effect of the orders made;’”

The court dismissed the motion, but not before criticizing the approach taken by the husband, writing:

“When you give a team of very talented and expensive lawyers a blank cheque to dredge up every conceivable argument and motion you can think of, this is what happens

40.It’s not just financially wasteful.

41.It’s gamesmanship which precludes honest settlement discussion.

42.Whether you call it oppression or a war of attrition – it’s basically one side trying to avoid the real issues, by creating as many legal hurdles as possible.

43. That’s the real perception the (husband) should worry about.

44.I suggested to the (husband’s) counsel that this motion could simply be adjourned indefinitely, returnable only if there is any suggestion that (the judge) will be assigned to this file in the future.”

The ending of a relationship is a difficult time, fraught with emotions. It’s easy to get caught up in it all. The exceptional family law lawyers at Arbesman Hamilton LLP approach matters of separationdivorcesupport, and child custody with compassion and experience. We understand how difficult a time this can be, and look to resolve matters in a quick, cost-effective manner that is free of any unnecessary litigation. Please call us at 416-481-5604 or reach us online to see how we can help you today.