‘Trials and litigation are expensive’, Court Of Appeal

Justice Benotto, on behalf of Justices Feldman and Lauwers, penned a ruling in the case of Fielding v. Fielding [2015] O.J. No. 6742 stating the obvious:

“Litigation is expensive. Unlike some types of litigation, in family law, there is no impersonal corporation injecting funds into the settlement or judgment. The family is spending its own money, thereby reducing what is left to live on. Every day that family law litigation continues, the legal costs mount and the money for the family diminishes. This is but one of the many reasons for the emphasis on resolution.”

“Trials are very expensive. As I set out above, there are - as there were here - resources available to assist parties to avoid a trial. When there are many issues at play, the trial costs are even higher. When a party rejects a reasonable offer, the risk of a substantial order for costs is assumed.”

This appeal culminated a long journey through the courts of Ontario for the Fielding family that involved many motions and conferences, a custody and access assessment, followed by one 15 day trial over financial issues, followed by another 10 day trial over parenting issues and then this appeal. Altogether, the 2 trial judges awarded the husband total costs in the sum of $545,000. 

Sometimes, even the smartest people miss the obvious, and need the courts to state the obvious to them. In this case, the two parents were intelligent, educated and wealthy physicians (the wife earned $220,000; the husband earned $850,000) who locked themselves into a long, circuitous and high conflict battle. The legal issues were not particularly complex – parenting of their children and a division of their assets. 

In most cases, the expense of litigation can be avoided

There seems to be a never-ending population of couples who find themselves embroiled in extremely expensive litigation, despite all of the roadblocks, off-ramps and alternatives presented to them to arrange their affairs amicably and inexpensively.  

The Fielding family had what few Canadians have, “resources available to avoid a trial”.  In this case, the Court of Appeal felt it necessary to remind this family that “trials and litigation are expensive”, before adding another costs award after dismissing the wife’s appeal (she was ordered to pay $50,000). 

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