Recent Ontario divorce case shows serious pitfalls of parents contemplating litigation over custody

By Sandy Vander Ziel

The recent decision of Justice Pazaratz in Jackson v Mayerle is a decision that all parents contemplating litigation over custody need to read and seriously consider.

The Ontario Superior Court Justice was clearly exasperated after the 36 day trial, which is uncharacteristically long for a family trial and longer than most criminal murder trials. In his decision he asked, “How does this keep happening? What will it take to convince angry parents that nasty and aggressive litigation never turns out well?”

Most articles that have covered this case suggest that Justice Pazaratz’s decision should be required reading for family law counsel and I wholeheartedly agree.  However, any parent considering litigation over custody should also read this case and heed Justice Pazaratz’s comments. The comment that struck me the most as I read this decision was the following:

Pause for a moment to consider the overwhelming tragedy of this case. These are nice average people. Of modest means (now considerably modest). They drive old cars and probably pinch pennies shopping at Costco.  And yet somehow, between them, they spent more than a half a million dollars on lawyers to ‘have a judge tell us something we could arrange ourselves’.

This comment resonated with me because in our practice we always focus on the fact that any client should want to have ultimate control over their family affairs as opposed to relinquishing this authority to someone who does not know their family, their values and their priorities.

To give this authority to the Court is a significant relinquishment of power that you cannot get back.  It’s a decision that cannot be entered into lightly.

In Jackson v Mayerle, Justice Pazaratz denied the Mother’s application for sole custody.  In his decision he focused on the fact that the Mother had “unreasonable behavior”.

In particular he referred to the fact that she appeared to be determined to alienate her daughter from her father, manipulated evidence and presented false evidence, and engaged in “proactive and dangerous behavior”.

The examples he used included stalking and driving behind the father’s car after he picked up their daughter. Justice Pazaratz also focused on the fact that the Mother had refused numerous settlement offers and, in the end, she ended up with a deal which was significantly worse than the offers she had rejected.

The harshness of his position was evidenced in his ruling on costs where he ordered the Mother to pay $192,000 to the Father which would cover at least 2/3 of his legal bills.   When you consider that costs are always at the discretion of the Judge, this is a significant award that is clearly meant to drive home a message to the Mother and others considering this approach.

There are numerous messages that this decision provides to parents in any custody dispute.  However, the most powerful message is, “our family Court system has zero-tolerance for this type of emotional abuse of children.”

At Dunphy Best Blocksom we understand that custody matters are fraught with emotion and uncertainty and we appreciate the fear that can drive a client’s position.  It truly is the underlying fears that contribute to unreasonable positions and push litigants into a situation like this unfortunate case.

This isn’t to suggest that there aren’t rare exceptions where custody matters need to proceed in Court.  At DBB LLP, we have the expertise and knowledge to assist in both litigation and alternative dispute resolution and to guide clients in their participation and expectations for each process.

Our lawyers are trained in all forms of alternative dispute resolution. We pride ourselves on the approach we take on files and the level of knowledge and expertise we have to guide you in your decisions.

Ultimately, in any family law matter, the parties have all the control over the process and the outcome, they simply have to step away from the emotion to really appreciate that the best interests of the child are never served by nasty and aggressive litigation in which the children become collateral damage and significant innocence is lost.

A full copy of the decision can be found at Jackson v Mayerle, 2016 ONSC 1556 (CanLII) here.