The Legacy of the Nightingale Case

  • April 11, 2023
  • Christine Vanderschoot

When one case closes, can that Final Order precedent open unintended doors on other litigation?

Family court judges make many decisions that help people going through difficult issues. However, it can happen that a judge’s decision, while applicable and helpful to the case at hand, creates a precedent that can have unintended consequences. This can result in uncertainty for future litigants who may or may not “fit” into the new precedent, or worse, a return to court to litigate matters that were thought resolved by all parties.

An example in point may be the recent Ahluwalia[1] case under appeal; while the trial judge clearly believed it was appropriate to make a large tort award against the husband, is this case going to be helpfully instructive to other families, or is it going to generate countless, and perhaps mindless, future litigations? Similarly, the “Nightingale” case, as it has come to be known, may have been the correct verdict and accurately reflected the regulations put in place in 2007, but the precedent-setting nature of that case may have been more harmful than instructive for other families.

The Horowtiz v. Nightingale[2] decision was released in 2017. It received its fair share of coverage in the family law press at the time, as it had the ability to affect many families who may include arbitration as an option in the Dispute Resolution section of their Separation Agreements. It also had an impact on existing Separation Agreements that did not include the now clear adherence to the Family Arbitration Regulations in the Arbitration Act.  In the Nightingale case, the Mother sought to vary the parenting arrangements through court despite the parties’ Minutes of Settlement directing the parties to arbitration. The Father sought to stay the Mother’s court action and redirect to the agreed-upon arbitral forum.