Losing custody of your child in 10 minutes.
Losing more than 1/2 your pension in 15 minutes.
Having $20,000 in costs awarded against you in 20 minutes.
Having all your pleadings struck, being prohibited from participating further in your own court case and excluded from your own trial in 25 minutes.
Being jailed for contempt of court in 30 minutes.
I've seen it all happen in family court!
Listening to stories of family separation, custody and support proceedings dragging on for years might lull you into a false sense of security (or frustration) that each pre-trial court appearance is just marking time, where you’re not at much risk of anything bad happening to you and your family (other than losing the money you might be spending on lawyers) until an actual “trial” happens. The reality is strikingly different.
The Speed at Which Family Law Orders Issue & Motions Explode
You risk being struck down in court if you don’t understand the scope of the Family Law Rules (at least in Ontario) in empowering judges to act decisively at any stages of proceedings. Family law is dramatically different from other types of litigation (like criminal or civil) for the lightening speed of its court appearances leading to temporary and even final orders, including its barrage of motions that can fly every whichway.
A simple court appearance as innocuous as a case conference could lead to you losing child custody in 10 minutes. Seriously.
Don't believe me? Check out Rule 17(8)(b.1) of the Ontario Family Law Rules which empowers judges as follows: "At a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so ... if notice has been served, make a final order or any temporary order ..."
There is no limit to this power. It derives from a relatively recent amendment to the Family Law Rules that seeks to make Case Conferences more productive. It gives huge discretion to the sitting judge, who is may be in possession of very few facts and hears very little argument before making a snap decision. So long as your opponent has given you some sketchy advance written notice, then the sky's the limit (within the family law context) on what can be asked for (though of course you can also use the same strategy).
Other types of litigious law that regularly go to court tend to be on sets of train tracks heading in only one direction. Some trains will run off the rails before they make it to the final judgment station. Some trains will get stalled on the tracks for extended periods of time. But mostly there is only one way forward. And after final judgment, if there are no appeals, a case is truly over.
By contrast in family law, cases that are thought long since buried can come back to life with retroactive claims in motions to vary, and cases that are just starting their judicial journey may get hit with motion after cross-motion.
So what's to be done?
Here's my review of how to avoid the top five terrible things that happen in family court.
1. Losing Child Custody in 10 Minutes
I used to think that child custody was only determined at family law trials, where there would be months and maybe even years of preparation, live witnesses would testify, maybe expert reports would be presented, and everyone would have lots of notice of what's at stake. While that is sometimes true for "Final" custody orders, it's often the "Temporary" custody orders that count most, as they're the ones that establish a "status quo." And the status quo can heavily drive what a trial judge will find later to be in the continuing best interests of the child.
A Temporary order might be made at almost any court appearance. A presiding family judge has a huge amount of power to interfere with your personal family life, including ripping your child away from you. Even for a young child who has spent every day of every year of his or her life with you. I've seen it happen.
So what's to be done?
You need to constantly be prepared to defend your position on what's in the best interests of the child. In Ontario, section 24 of the Children's Law Reform Act contains a highly useful list of the eight key factors legislators have decided to be core of defining the "best interests of the child," including:
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
You need to be constantly on guard at every court hearing to defend why you should maintain your custody or access in its current state, with reference to the above factors.
You can seek to appeal really bad Temporary custody outcomes, however in Ontario you’ll need to: (1) bring a motion for leave (permission) to appeal to a three judge panel of the Divisional Court; (2) you only have 15 days from the date of the order you object to to serve that motion; (3) you’ll need to seek an interim emergency stay pending appeal from a single judge of the Divisional Court in order to stop the new custody regime being implemented pending your motion for leave to appeal.
All of this will take time. And money. Far better (and cheaper) to try to stop the change of custody decision in the first place, before it happens, before the Case Conference, Settlement Conference, or Motions judge.
2. Losing More Than Half Your Pension in 15 Minutes
Pension division calculations, and financial gymnastics in family law in general, remain tricky things. While we might like to hope most judges are great at math, in fact many of them might have gone to law school because their math marks sucked (mine weren't so great for calculus). Plus, summarizing and analysing more complex family law numbers might take expert accountant knowledge.
It's therefore not surprising that judges can screw up math. And other than for child custody, family law is almost entirely about math.
So even if everyone in a family law courtroom understands the basic principles of how things should be split upon relationship breakdown, that doesn't mean that they'll apply those principles correctly. You might find a judge making a $150,000 math error against you. And then discover it's very difficult to change the judge's mind once convinced that s/he is right and you are wrong (particularly if your ex-spouse is cheering on the fact that s/he is now $150,000 richer).
So what's to be done?
Employ experts (like accountants, pension specialists and actuaries) to ensure your math is bullet proof. The judge might not believe your math. The judge might not even believe your lawyer's math. But the judge will usually accept that experts got it right. And if the other side still wants to fight about the numbers, they'll usually need to produce their own experts, who might even side with your experts at the end of the day.
3. Having $20,000 in Costs Awarded Against You in 20 Minutes
Some jurisdictions like Quebec make litigants bear their own costs, because it arguably increases access to justice. But Ontario takes the approach that loser pays, and winner gets paid, which Ontario says is its version of access to justice (even though you might find it impossible to collect the costs).
The idea in Ontario is that the risk of costs awards will deter those with crappy cases from attempting to take them to trial, since they will get punished through costs if they lose. The idea is to encourage all sides in a dispute to make reasonable settlement offers to each other, as having a reasonable settlement offer refused may get you enhanced costs, even if you "lost" the case.
But I've seen some "little" family motions lead to $20,000 (or more) in costs awards against the loser, which are far more punitive that the subject of the motion itself.
So what's to be done?
Ensure you are strategic in making a settlement offer prior to any motion by or against you. You need to demonstrate to the court that you're the reasonable one, so that if you unfortunately do lose the motion, you minimize your costs exposure. Very outrageous costs awards can also be appealed to a higher court.
4. Having all Your Pleadings Struck, being Prohibited from Participating Further in your Own Court Case, and Being Excluded from Your Own Trial in 25 minutes
Think you always have a right to be present at and participate in your own trial? Think again!
While that fanciful notion applies strongly in the criminal law context, in family law if a judge thinks you haven't complied fully with past court orders (as in 100% compliance, not even 99%) s/he can "strike" all your pleadings (meaning your claim or reply), and later even proceed to hold a trial without you being present. And yes, that can lead to horrible outcomes on custody, financial calculations, and costs, because there is only one side there for the argument.
The striking of pleadings leads to surreal Kafkaesque situations, where a litigant is actually present in court, wanting to participate, but is legally prevented from doing so. The pleadings can’t be refiled, because they’ve been struck. But the litigant is permitted to remain in the courtroom, subject to something of a gag order.
So what’s to be done?
Do everything you possibly can to avoid your pleadings being struck. Meaning, file any replies within the court ordered timelines, produce all documents and information you are required to produce, and bring a timely motion to extend timelines for anything court ordered that you’re finding it impossible to comply with (like for obtaining documents not within your control) BEFORE the next court date when you risk a striking of pleadings. Or at the very lease, make your motion to extend timelines of compliance returnable on the next court date already scheduled for your case.
If your pleadings do get struck, immediately launch an appeal as that striking will be a Final order against you. You’ll have a short timeframe within which to serve and file your appeal.
5. Being Jailed for Contempt of Court in 30 Minutes
Contempt of court motions are extremely rare, except - of course - in the family law world! Contempt is a quasi-criminal offence, that requires proof beyond a reasonable doubt. It also usually requires that the person accused of contempt - even if convicted - be given a chance to “purge” his or her contempt prior to sentencing.
Contempt of court motions have become the cattle prod of family law, where parties constantly zap each other over non-compliance issues. Even where the source of dispute over compliance might be minor. And there might not in reality even be any non-compliance.
It’s still fairly rare to go to jail for contempt of court. But it happens. A motions judge hearing a family contempt motion has a lot of discretion. “Fines” tend to be the more common punishment.
But if there have been repeated prior findings of contempt, a judge might without much warning decide to up the ante by imposing custody on a party. Even though there is no “criminal” charge. And you haven’t had the benefit of the months or years of a criminal proceeding process involving disclosure, negotiations, and trial preparation, only after which could there be a conviction and sentencing leading to custody (which rarely happens except for the most serious of offences).
So what’s to be done?
Be constantly vigilant to guard and defend against contempt motions. Understand the contempt motions process (preferably with the aid of a lawyer), and use that understanding to restrain the trial judge from making rash findings that could lead to jail.
Stress the “proof beyond a reasonable doubt” standard. Stress that credible, relevant evidence is needed. Stress that there must be proof of an intentional rather than just accidental breach of a court order. Stress that any sentencing hearing should be adjourned for the purging of contempt. Stress that jail is truly a last resort.
Thinking of every day in court for family law as being like a mini-trial, where anything could happen, and preparing accordingly, will best protect you from the top five terrible things that happen in family court.
Gordon S. Campbell practices family law throughout Ontario. He especially litigates high conflict cases, and undertakes family appellate work in the Divisional Court & Court of Appeal.