Even an amicable divorce or separation can be stressful for everyone involved. Unfortunately, not all family law issues are settled in an amicable matter. It is not uncommon for courts to hear of situations where one party in a family law matter fails to cooperate with the courts and others involved. Recently, the Supreme Court of British Columbia looked at whether extreme bad litigation conduct could amount to family violence under the province’s Family Law Act (“FLA”), thus constituting the awarding of special costs.


The parties were married in 1997 and separated on July 1, 2014. They had two children, one born in 2004 and the other in 2006. Both of the parties are highly educated professionals. The mother has a master’s degree in counseling and was working on her Ph.D before a breast cancer diagnosis, while the father is a psychiatrist who worked in a hospital before changing his practice after the separation.

The divorce was contentious from the outset, with both parties filing lengthy affidavits largely contradictory of one another. The court also described the affidavits of being “replete with opinion, argument and hearsay, much of which is concerned with casting the other party in a negative light, and all of which renders it difficult to make findings of fact.” In total, the mother submitted eleven affidavits, while the father submitted five. They each submitted three sworn financial statements.

The parties had previously reached a Final Order, which called for the sale of the former family home, money to be placed in trust for the father’s corporation’s possible tax liabilities, division of a pension plan, and division of funds held in RRSPs. It also dealt with child and spousal support based on the father’s annual income of $454,000 at the time.

The mother had a number of issues with the Final Order and sought review of it. In one of her affidavits she outlined a number of issues she was experiencing at the time the Final Order was being negotiated. She wrote

“10.  During the financial divorce negotiations in July 2016, I was unable to appreciate adequately the provisions or the implications of the contract by reason of extreme emotional distress, fear, depression and cognitive impairment.

11.  At the time of negotiations, I was medically diagnosed with and suffering from the following conditions:

a.  Trauma expressed as Major Depressive Disorder with Anxious Distress…

b.  ADHD diagnosis causing cognitive impairment, further exacerbated by divorce stress and conflict…

c.  Cognitive impairment from cancer treatment…

12.  I was experiencing severe psycho-social stressors in the two years leading up to trial, and during the time of financial negotiations including:

•         high conflict interactions with the Respondent

•         I was the target of litigation mis-conduct perpetrated by the Respondent

•         stress from the pressure of trial preparation & trial cross examination

•         parenting stress as the full-time parent of highly distressed children

•         financial distress – mounting legal bills and the accumulation of significant debt

14.  All of these conditions impaired my executive functioning skills. I found it difficult to reason, problem solve, make decisions, focus my attention and regulate my emotions. This impacted my ability to process the information that my lawyer was providing me and thus, my ability to make a fully informed decision.

17.  During the subsequent negotiations, I was overwhelmed, emotional and experienced multiple panic attacks (shaking, heart palpitations, shortness of breath, chest pain). I was exhausted and emotionally numb as the negotiations continued. I felt that I did not have the emotional fortitude to return to court and feared the prospect of going back….I was overwhelmed and eventually shut down cognitively, unable to process the information I was provided by my lawyer and thus unable to make informed decisions and give informed instructions to my lawyer.”

She also wrote that the financial stress she was experiencing caused her to settle and “take a deal with some significantly unfair provisions.”

Finally, the mother took issue with the father’s decision to resign his position working in a hospital in order to take a much lower paying job as well as his cashing in of $90,000 in RRSPs. All of this, she claimed, amounted to family violence. She sought a re-appointment of family assets as wella s an award of special costs based on the father’s conduct.

The court’s position

While the court was sympathetic to what the mother was going through, it stopped short of agreeing with her characterization of the father’s behaviour, writing

“In the present case, there is no doubt that the litigation has been lengthy and difficult and characterized by a high degree of mistrust and acrimony on the part of both the claimant and the respondent. Each largely blames the other for this unfortunate state of affairs. However, it is not possible, nor would it be fair, to place the blame solely on one of the parties, particularly given the state of the evidentiary record as described in paras. 7-8 above. Both are responsible.

“It is worth noting that both parties acknowledge that the ongoing stress associated with this litigation is a contributing factor to their respective mental health issues, yet neither seems capable of ‘stepping back from the fray’.”

At Borden Family Law, we have been helping clients with their family law needs for over 17 years. In this time we have seen it all. We have the experience and knowledge necessary to help you through any separation or custody issues you may be facing. Call us at 905-597-6090, or contact us online. Ask about our bundled services and flat fees.