The Best Vancouver Calgary Toronto Family Lawyers know that the breakdown of family relationships can be hard. MacLean Law has been named a leading family law firm by Doyle’s Guide as voted by our family law peers. Sometimes resolving family law disputes over the parenting of children, financial support, and division of family property can get hotly-contested and adversarial. And sometimes it may even be tempting to take an uncompromising, hard-line approach to get what you want or feel you (or the children) deserve.
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In situations like this, people sometimes look for a “pit bull” lawyer to make aggressive, uncompromising arguments against their ex-spouse in Court. However, sometimes it is the ex-spouse themselves who plays “hard-ball” with their former partner. But is it really helpful to play “hard-ball” in resolving family law disputes? The Best Vancouver Calgary Toronto Family Lawyers know that the answer is: No. And the Courts do not support this approach, either.
The origin of the principle that Courts will not tolerate playing “hard-ball” in family law disputes can be traced back to the 2014 case of Bhasin v. Hrynew (2014 SCC 71), where the Supreme Court of Canada made it clear that when interpreting contracts (including family law agreements) the Court would recognize an “organizing principle of good faith”, and a “duty of honest performance”.
This organizing principle was affirmed the same year in the Ontario case of Ramiah v. Ramiah (2014 ONSC 516), where the Ontario Superior Court of Justice awarded full indemnity legal costs against a father who had “demonstrated a willingness to ‘play hardball’ in the proceeding” particularly regarding his child and spousal support obligations (para. 10). (For a further discussion on legal costs, see our article: Calgary Alberta Family Law Costs.
This principle was further referenced in the 2017 British Columbia case of Weiss v. Treissman (2017 BCSC 1523), where the Hon. Mr. Justice Kent, in regard to the conduct of a high-income Doctor, stated (at para.’s. 64-68):
“Dr. Treissman has been playing “Hardball”.The Final Order permitted him to pay the lump sum at any earlier time he wished. It has been a deliberate negotiating strategy on his part to withhold payment, knowing full well that Ms. Wiebe has been in difficult financial circumstances for the past 18 months… Some text messages sent by Dr. Treissman and referring to Ms. Wiebe have been put into evidence. They are not flattering. On January 2, 2017 Dr. Treissman texted his intention to “ratchet up the $ pain a bit” by delaying payments. He even expressed a desire that Ms. Wiebe, the mother of his four children, be “liquidated”… These are not sentiments worthy of a respected physician. Hippocrates would not be impressed. Neither is the Court… The gamesmanship must come to an immediate end…” [emphasis added]
Playing Hard Ball Behaviour Can Backfire
But the most recent and perhaps direct admonishment from the Ontario Courts against parties (and their lawyers) playing “hard-ball” in family law disputes comes from the 2019 case of Mackie vs. Crowther (2019 ONSC 6431), where the Hon. Justice Pazaratz of the Ontario Court of Justice wrote (in regard to parents fighting over who would take their daughter to hockey tournaments) at para.’s 11-13:
The father’s affidavit sets out that he merely “requested” that he take the child. In my view, this is quite disingenuous. The father didn’t “request.” His lawyer sent a letter announcing that this was the way it was going to be, take it or leave it. I noted to Mr. Avoola that it is quite troubling that experienced counsel would send a letter that so openly and flagrantly shows contempt for an existing court order. Counsel can request that orders be changed. But when counsel unilaterally announced that their client is changing an order whether the other party likes it or not, counsel are exposing themselves (and their clients) to enormous unwanted repercussions.
I do not accept the Respondent’s suggestion that he was merely “requesting.” He was acting in a heavy-handed manner and this created needless anxiety for the child who should be allowed to enjoy hockey tournaments without worrying about related conflict between parents.
I wish to make it clear to both of these parents that I am trying to send a very strong signal. Don’t engage in hard-ball tactics when it comes to parenting issues” [emphasis added].
In ordering full indemnity costs in favour of the mother and that the father’s access to the child would be completely suspended indefinitely if the father did anything to interfere with the mother taking the daughter to one of the hockey tournaments, Justice Pazaratz warned (at para.’s 19-22):
The [father]’s behaviour was outrageous and falls into the “high conflict” category that we strive to discourage in this building. We can’t have parents unilaterally changing important time sharing orders, and we can’t have lawyers sending intimidating letters… The [father]’s approach was ill-advised and his counsel’s letter was ill-advised… Unreasonable parents need to understand that hard-ball tactics can backfire in a very expensive way.” [emphasis added]
So, is it helpful to play “hard-ball” in resolving family law disputes? The Courts don’t think so, and will not hesitate to order full indemnity costs against offending parents in such situations.
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MacLean Family Law has Offices across Canada including downtown Vancouver, Calgary, Toronto, West Kelowna, Surrey, Richmond, Victoria, and Fort St. John.
At MacLean Family Law, we handle “high-conflict”, medium-to-high net-worth, and medium to high-income family law matters. But does this mean we have to take an uncompromising, hard-line approach in family law matters? No. We take an assertive and results-oriented approach to resolving family law disputes for our clients. This includes encouraging clients to resolve their family law disputes out of court by using Alternate Dispute Resolution (ADR) processes including Mediation, Collaborative Law, and Mediation-Arbitration.
The Best Vancouver Calgary Toronto Family Lawyers know that taking a “hard-ball” approach to family law disputes is not the best way to resolve family law disputes, and can often lead to adverse cost awards. A reasonable approach, supported by both facts and law, is the more effective way of resolving family law disputes. Contact us today.