Combatting Litigation Abuse in Family Law

Litigation abuse happens when a spouse or partner tries repeatedly, in various ways, to frustrate the legal process to prevent their spouse from obtaining an order or enforcing it. It’s been described by experts like Professor Nicholas Bala as a form of “coercive control”[1] – defined as “a form of intimate partner violence that is a pattern of behaviour used to exercise continuing power and control over an intimate partner or former spouse.”[2] Professor Bala observes that litigation abuse can impede the court, consume counsel’s time and be very costly for clients – both financially and emotionally.[3]

Counsel attempting to combat litigation abuse in family law cases face five main challenges – each of which requires skilled navigation that the steps below can guide you through.

1. Taking Aim at Delays and Unreasonable Litigation Behaviour

Prior to or at the commencement of an action, counsel will likely be aware that a party is unreasonable (e.g., relevant disclosures are not provided; no responses made to requests to move forward or attempts to settle). When an action is started, counsel should ask for one judge to provide judicial oversight— case management—at the outset. [4]

In Reeve v. Larson, the benefits of having case management are clear. The difficult behaviour of the self-represented husband quickly emerged in the action as he sought to have prior orders varied without meeting the material change threshold; engaged in abusive communication; did not comply with court orders and refused to provide appropriate financial disclosure. The case management judge imposed restraints to curtail his unreasonable steps by setting up strict protocols on when to bring a motion, what steps to take for any proper motion and restricting written communications with the court. [5] Her Honour also considered the appointment of an amicus and quoted Justice Chappel’s call to judges to be “as creative as necessary in crafting remedies…” to address abuse. [6]

Additionally, counsel should use key Family Law Rules, O. Reg. 114/99 (“FLR”) to keep the case moving efficiently, e.g.:

1. Rule 1 enables the court to deal with the failure of a party to follow its rules, or orders in the case or related case, by making an order as necessary;
2. Rule 2 allows the court inter alia to set timetables or otherwise control the progress of the case; at an early stage, identify the issues, separating and disposing of those that do not need full investigation and trial;
3. Rule 14 allows a motion to be brought for directions in terms of how to carry on the case. Consider this motion if the litigation becomes too unwieldy and/or there is no case management judge;
4. Rule 16 allows a party to bring a summary judgment motion where there is no genuine issue requiring a trial. Note, the court will require all the relevant evidence, including financial disclosure, before it makes a final order.

Other summary procedures to avoid a full trial (delays and costs) include binding judicial dispute resolution (JDR). This is an attractive option for those cases that are simple and straightforward (e.g., without experts and multiple witnesses). The parties have to consent to have the same judge resolve their outstanding issues – first by trying to settle the case, and then, if no resolution is reached, the same judge can make a final decision. The drawback will likely be obtaining a difficult party’s consent.

Assuming there are no summary processes for judgment applicable, as soon as it is reasonable to do so, try to schedule a trial date. If there are no offers to settle from the perpetuating party, or unreasonable offers to settle – and/or a party is not proceeding in good faith – it is often better to get the case on a trial list and move towards an end date.

At any stage of the litigation, alternate dispute resolution processes such as mediation or mediation-arbitration should be considered, when appropriate. While these processes can shorten time and costs, if the perpetuating party is not genuinely working towards a resolution or attempting to narrow issues in the ADR process, then moving to trial may be the best option.

If there is an appeal of any order, case management may still be an option. All proceedings in the Divisional Court are subject to judicial case management. At the Court of Appeal of Ontario, case management can be sought by writing to the executive legal officer, although it is typically reserved for the more complicated cases or ones with multiple parties or grouped appeals.

With an appeal, there will be an automatic stay of certain orders such as the payment of money (subject to exceptions). An unreasonable party may file a Notice of Appeal, motivated primarily to invoke the stay. Consider taking steps to have the stay lifted under Rule 63.01(5) of the Rules of Civil Procedure—although this is a discretionary remedy.

2. Managing Costs-Improper Use of Forms and Communications

As part of a party’s strategy to make the legal process overwhelming for their spouse, often they will make false allegations or raise irrelevant matters in court forms.

In the case of false or inflammatory allegations in affidavits, pleadings and other documents, consider bringing a motion to strike them under Rule 1 (8.2) of the FLR. If the allegations are irrelevant, scandalous, a waste of time, a nuisance or an abuse of the court process, they may be struck. A successful motion to strike will save money and time, as no response will be required.

In the case of a Request to Admit, while the Rules require a response within the 20 days specified, the defending party does not need to respond to every inflammatory or irrelevant allegation in detail. The defending party can simply refuse to admit the fact/document as genuine by giving specific reasons for doing so. (e.g., I am refusing to admit the following facts: they are not relevant to the issues, together with a brief explanation of the reason.)

3. Creating a Coherent Evidentiary Record

Where coercive control is present, exposing the pattern of a party’s actions to harm or seek power over their spouse is crucial. One incident may not amount to abuse, but a host of factors may. In Reeve, the case management judge kept a chronology showing key dates, orders and the lack of compliance by the husband. Counsel should maintain a similar chronology to track any non-compliance including a party’s refusal to pay amounts that are due, or to follow court rules or a Court Order. [7]

Often the difficult party will send inappropriate and voluminous communications to counsel and their spouse. These communications can take time to review, but can also form part of the evidentiary record showing a party's unreasonable conduct and attempts to emotionally or psychologically weaken their spouse.

Third parties – schools, doctors, police – should be canvassed as they may have important information too.

4. Seeking Costs and Security for Costs

Seeking costs at every step is important, especially where one party has taken a step unnecessarily or brought a motion on a frivolous basis. In cost submissions, raise the misuse of any court forms and/or inappropriate communications and show the extra work that had to be done to deal with or respond to improper actions. Also provide the court with all offers, as they will typically show the unfairness of one party’s position and, conversely, why the defending party had to continue the litigation to get a reasonable outcome.[8]

Consider seeking an order for security for costs. However, note that there are strict criteria in the Rules to obtain these types of orders. In Alami v. Haddad (2024 ONCA 300), the husband brought a motion, after his wife appealed, asking that she post security for costs. For the husband to be successful, he had to satisfy all of the criteria of subrule 61.06(1) (a),(b) and (c) of the Rules of Civil Procedure, i.e. he had to demonstrate good reason to believe that the wife’s appeal was frivolous andvexatious and  that she had insufficient assets in Ontario to pay the costs of the appeal.[9] The motions judge found that the husband's motion had not met all criteria. The wife was allowed to proceed – although her appeal seemed weak – without the requirement of posting security.[10]

5. Sanctions and Enforcement for Non-Compliance of Orders and Rules

Additionally, when the unreasonable party will not provide disclosures, the Family Orders and Agreements Enforcement Assistance Act , R.S.C. 1985, c.4 (2^nd Supp.) may be used to obtain the relevant disclosures from third parties under Section 7.[11] If successful, the court can direct a court official to apply to the minister to have information banks searched to release the information prescribed (e.g., income tax returns, notices of assessment, corporate documents) to the court. Once the information is sent to the court, a judge will decide what documents/disclosure should be released and to whom.

In cases where court orders (other than payment orders) are not complied with, then a motion should be considered for contempt under Rule 31 of the FLR. The test for contempt is very strict; however, the remedies can include fines, prison or other sanctions.

In extreme cases, consider moving to have the unreasonable party declared a vexatious litigant. [12] This is an extraordinary remedy and is only exercised sparingly by the court, where, for example, a party has engaged in re-litigating settled matters or filing meritless suits to harass. If successful, sanctions can include requiring the party to seek leave before another step is taken.

Finally, take immediate steps to vigorously enforce court orders. For financial relief, ensure that sufficient assets of the perpetuating party are preserved to facilitate enforcement of all monetary orders. Ask for an order that a party’s share of the net proceeds of sale from a property be held in trust until any equalization payment or lump sum support due, or cost order, is paid. Or ask for an order to have any amount due – plus any cost orders owed – be paid out of the member party’s pension.[13] (Note: pension plans typically have a cap on the amount that can be transferred to a spouse.) [14]

Litigation abuse will place demands on even the most experienced family lawyers. Counsel can use the framework above as a checklist to consider the best and most cost-effective strategies to meet the challenges of litigation abuse.