JUSTICE WRITER — The Globe and Mail
A Toronto couple spent $2-million in a protracted court battle over whether their little boy could spend nights with his allegedly violent father, in a conflict that turned a precocious and sociable child into a shy, fearful one.
The case, known as M. and F., is a cautionary tale for parents who would rather fight than settle. The trial lasted 34 days. At the heart of it was the mother’s allegation that the father had been violent toward her, rendering him unsafe to his son, now six, during overnight stays. The case went on to the Ontario Court of Appeal, adding to the costs borne by the mother, who owns a successful insurance brokerage, and the father, a litigation lawyer.
In the end, the father won the battle over sleepovers. The trial judge ordered the mother to pay $500,000 toward his legal costs (the father had asked for $900,000, and the mother wanted him to pay her $800,000), on the principle that the loser pays.
The appeal court, affirming the father’s victory on overnights and costs, told the mother to pay an additional $40,000 toward the father’s appeal costs (he wanted $160,000, she wanted him to pay her $120,000). “These amounts are out of proportion to the issues on this appeal,” Justice Mary Lou Benotto commented for the appeal court.
The case set one precedent (courts do not have to use the label “custodial parent” when asked, because it promotes an adversarial approach) and affirmed, and perhaps extended, a second one (an expert report critiquing another expert’s report is probably pointless). But it was the level of acrimony, the expense involved and the extended use of courtroom time, always in short supply, that caught the eye of Toronto’s family law bar.
“It’s beyond comprehension how these kinds of costs could have been incurred,” given the issue at stake, lawyer Harold Niman, who was not involved in the case, said in an interview. Lawyer Edwin Flak, whose name is on the appeal court ruling for the mother, declined to comment. For the father, lawyer Samantha Chousky said her firm has a long-standing practice of declining to comment on its cases.
Mr. Niman said the appeal court’s decision to uphold the $500,000 cost order against the mother sent a strong message about using up judges’ time. “You pay as you play.”
Marshall Korenblum, the psychiatrist-in-chief at Hincks-Dellcrest Centre for children’s mental health, read the ruling at The Globe’s request. “It never ceases to amaze me how parents are willing to put their own needs for revenge and winning above the needs of the child,” he said.
Phil Epstein, editor of Family Law Reports, said the most important aspect of the case was the clash over family violence, and what it means for subsequent parenting arrangements.
The couple had a three-year, on-and-off relationship, and lived together for one month, during which the child was conceived. The mother alleged the father attempted to strangle her during sex, ripped out her earrings, dragged her down stairs and hit her in the face. Once, the police were called. (There was no information in the appeal court ruling as to whether the man was charged.) The father has been diagnosed with narcissistic personality disorder and has a drinking problem.
Justice Kevin Whitaker of the Ontario Superior Court of Justuce, who was the original trial judge, said he saw no reason to believe the overnight visits would not be safe, in spite of the allegations of violence, which date from 2009. The father was raising three other children, safely. The boy was already spending extensive daytime hours with his father. And a respected child psychologist, Irwin Butkowsky, who had been working with the family since the child was nine months old, and who had been asked by both parents to develop a parenting plan, had recommended the overnight stays. (It was Dr. Butkowsky who noted how the boy had changed from outgoing to apprehensive because of the ongoing tension and conflict in his life.)
The mother retained psychologist Peter Jaffe, who served on a national panel on violence against women in 1992, to critique Dr. Butkowsky’s report. Dr. Jaffe, who had not met the child, recommended against overnight visits until the father completes treatment for violent behaviour. The appeal court, striking a blow against an occasional feature of high-conflict child-custody cases, said such ‘critique evidence is rarely appropriate.” It said it lacks value as evidence, adds expense and “risks elevating the animosity between the parties.”