“Extreme” Family Law Litigation Decried by the Court

Despite family law Rules of Court that call for the “just, speedy, and inexpensive determination of a family law case on its merits”, there always seem to be those cases that take on the qualities of “scorched earth” litigation. Oliverio v. Oliverio 2017 BCSC 1704 appears to be one of those cases.

The application heard by Master Muir sought orders imputing income, determining the quantum of child and spousal support, and the sale of the family home. Other orders sought in the Notice of Application had been resolved or adjourned by the parties. Nonetheless, the application took more than a day-and-a-half of court time over three separate dates.

What was equally remarkable was the two boxes of materials presented to the court containing 160 affidavits, with 26 affidavits filed by the respondent wife and 15 filed by the claimant husband in respect of the orders sought. Master Muir described this mountain of material as evidence of “an unhealthy and abusive litigation climate”.

The preparation of 160 affidavits is almost too much to contemplate and the cost enormous.

She said:

“This approach to family issues is counter to the fundamental basis of our present family system which encourages negotiation, not litigation. This is not supposed to be a war. It is supposed to be a civilized allocation of rights, responsibilities, and assets following a family break-up.”

Master Muir declared that this style of litigation was unnecessary, damaging to the parties and their children, and a waste of family assets on litigation costs. She noted that the parties had accessed capital in the amount of almost $700,000, much of which was used to fund their legal expenses, albeit their trial was still eight months away.

As both husband and wife were not employed, although capable of employment, the court imputed $95,000 of income to the husband and $25,000 to the wife, and ordered child support with a set-off to account for their equal parenting arrangement. The wife also received spousal support at the mid-range. The application for the sale of the home was dismissed.

Finally, Master Muir implored counsel to speak to their clients. She said:

“I ask that counsel convey those sentiments to their clients in the hope that this can be reined in and the parties can refocus on resolving this in some other way.”

As a mediator and arbitrator, I know this case could be resolved within 60 days, if not less, using a mediation/arbitration model, where a legal professional mediates the disputed issues, with those unresolved being decided by that legal professional. And probably at a cost of less than $20,000…just sayin’

Lawdiva aka Georgialee Lang