“This trial is the culmination of three years of litigation between spouses who are the parents of three children. As parents they sought advice, first through the local co-ordinated case management program, subsequently through a sophisticated voice of the children report. Their common refrain for not following the advice given was that it cost too much. The mother testified she could not afford an amount of $350 to take New Ways for Families, a course designed to improve communication between separated parents. The father ceased his pursuit of family counselling necessary to repair his relationship with his two sons, when he could not obtain it free of charge. As spouses, the parties have already had to sell two of their four real properties to cover debt and legal fees. The Respondent’s plumbing business has gone into bankruptcy. Neither spouse is currently employed. Both explain this in some part by reference to the stressful and time-consuming litigation.
“Penny wise and pound foolish:” to be extremely careful about small amounts of money and not careful enough about larger amounts of money.
“For want of a nail the kingdom was lost:” a failure to correct some small dysfunction, a seemingly unimportant act or omission, leading by successively more critical stages to an egregious unforeseen outcome or consequence.
Cost is a word with many meanings. Most importantly, has the litigation been at the children’s cost? From their perspective would a cost – benefit analysis show that the cost of this undertaking has exceeded the resulting benefit? These questions may be asked another way: have the parents been acting in the best interests of their children throughout this litigation? The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) s. 16 (8) refers to the best interests of a child as the only factor relevant to parenting orders.
The Supreme Court of Canada referred to the best interests test in Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, stating as follows:
20. The best interests of the child test […] stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. […] Parliament has offered assistance by providing two specific directions – one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.
21. […] Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.
24. […] The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.
Sadly, the cost of this litigation has been very high for all concerned, especially the innocent children. The parents’ have not followed the parenting recommendations made for them, and by not doing so, have not acted in the best interests of their children.”