Introduction

Over my 30 plus years of practice, I have seen plenty of family law clients who dislike their former partner. I mean really dislike. Hate, despise, loathe – look at a thesaurus and pick your word of choice. Sometimes, police get involved to make sure they stay away from each other. Sometimes, judges have to make orders to ensure that they do not harass or annoy one another. It’s a normal, yet sad, reality of family law litigation.

But what I have been seeing more and more of late, as have my colleagues, is the family law client (mother or father) who goes above and beyond the usual pattern of an angry or disgruntled client. This abusive client directs their non-stop antipathy towards the other party by relentless court hearings to cause them fear, to intimidate them, to harass them, to control them, and (or) to simply waste their time.

Usually, this client is self-represented and sees the court system as a way of getting back at, or exacting revenge against, their former partner. This client is also usually “of limited financial means,” or he has structured his finances to avoid being punished for his actions. They see themselves as “untouchable.” Well, for those of you who watched the 1987 movie “The Untouchables,” with Kevin Costner and Sean Connery, you will know that everyone is “touchable,” as exemplified by a horrific scene in the movie. But unlike the violent 1930’s mobsters depicted in that movie, family court judges today take a very practical and civilized approach to curtail the damage that such unruly litigants can cause.

This blog is about vexatious litigants, what that term means, how and when such a declaration should be made, and how to pursue (or avoid, as the case may be) the declaration. Although I started off this blog saying that I have seen an increase in bad behaviour, such declarations of being a vexatious litigant is not a common one. It is used judiciously (pardon the pun), but when it is used, it does the trick – it reminds people that the court system is not going to put up with such nonsense, simply because a resentful litigant feels offended by what has happened to him in/out of court. Judges will put up with a lot of … baloney, but there is a limit to what they will permit in their court. Court time is a limited resource that must be well managed.

What Does it Mean to Be Declared a “Vexatious Litigant?”

Pursuant to section 140(1) of the Courts of Justice Act, a litigant will be considered to be vexatious if he has persistently, and without reopenable grounds, instituted vexatious proceedings in any court, conducted a proceeding in a vexatious manner. In common parlance, “vexatious” is simply another word for “annoying.” But in a legal context, “vexatious” means more. It means instituting legal proceedings without sufficient grounds, so as to cause annoyance or embarrassment to the offended party. To be considered “vexatious,” one needs to establish that the offending proceedings are vexatious, or that the proceedings themselves have been conducted in a vexatious manner. It does not have to be both.

How Do You Know if a Case is Vexatious?

Fortunately, over the years, many judges who have presided over such cases have been able to determine some indicators of a vexatious proceeding. They are as follows:

1. the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
2. where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
3. vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
4. it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
5. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
6. the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and,
7. the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

Also, it’s important to note that the offending person’s conduct both in and out of court will be taken into consideration in reaching such a decision.

What Happens if Someone is Declared a Vexatious Litigant?

Pursuant to the same section referenced above, if a person is declared a vexatious litigant, then a judge may order as follows:

1. no further proceedings can be instituted by the said person in any court, or,

2. if a proceeding previously commenced cannot be continued, except with leave of the judge, and,

3. any other terms that is

There are some conditions to such an order. First, the judge must be a judge of the Superior Court of Justice or the Court of Appeal. It cannot be a judge of the Ontario Court of Justice, nor a deputy judge of the Small Claims Court. Second, it does not mean that the person is no longer allowed to pursue/continue a case in any court. This would limit a person’s fundamental right of access to justice. Rather, before starting a new case, or continuing with an existing one, the said litigant would need permission from a judge to do so. The judge will vet the person’s court papers to make sure that any further court process that the party wishes to start, or continue with, is not frivolous in nature.

As for the last option, judges can decide to tailor a vexatious litigant order to suit the needs of the case. In other words, the “other terms” can be very far-reaching in nature, and represent a full stop to further litigation, subject to judicial leave, or it can be less restrictive in its application, if need be.

When Should You Pursue Having The Other Side Being Declared A Vexatious Litigant?

As with anything in life, let alone in court proceedings, timing is everything. Given the severe restrictions that can be imposed on a person who is declared a vexatious litigant, consider bringing this motion only after other motions (to admonish the bad behaviour of the other person) have been exhausted and proven futile. These motions include, but are not limited to, motions to compel disclosure, motions to strike pleadings, motions for costs, etc.

A declaration of being a vexatious litigant puts a stop to a person’s right to access the court because they have abused that right, so you need to establish that there has been a pattern of conduct that would warrant such a declaration, and to show that all other efforts to curb the bad behaviour has not worked.

Let me illustrate. If the other party brings you back to court to enforce or change an order following a heated exchange about parenting or support issues, bringing a motion for a vexatious litigant declaration will not be successful. On the other hand, let’s say the other party has brought the said motion to change, lost it and got ordered to pay you costs (which are not paid), brought an appeal of that order, lost it and got ordered to pay even more costs (which are not paid), appeals it further, and denied leave and was ordered to pay significantly more costs (which are not paid). If he then immediately starts similar court proceedings in multiple courts (criminal, civil, and family), now would be a good time to consider bringing such a motion.

What To Do If The Other Side Is Seeking To Have You Declared A Vexatious Litigant?

If you are alleged to be a vexatious litigant, and the other party has started the motion for that declaration and other relief, then there are a few things I would suggest you consider doing:

1. Consult with and/or hire a lawyer immediately. The orders being sought against you are serious and can have negative consequences not only to your current situation but to other cases in other courts.

2. Reconsider your current actions in this Did you bring this matter back to court in the proper venue, after sufficient amount of time has passed, and with a realistic legal chance of success?

3. Check your ego. This is a follow-up to #2. Are you bringing this case back to court too soon, simply because you lost others steps/cases with the other side? Can you not accept that you lost? Are you doing this out of spite and revenge? Is your hate for the other side really greater than your love for your child/children that may be affected, or for your financial well-being of you continue to lose?

4. Are you coming to court with “clean hands?” Have you paid all your costs orders to date, because your unwillingness to pay court costs will not go over well. It does not matter that you cannot pay them as that issue was already considered when the costs order was

5. Don’t bring up past the “wrongs” against you. Much like #4, don’t try and re-hash the decisions of the past. You’ve had your day in court for those matters. This case is a different If you current case has merit, focus on that and show the judge that there is a legal basis for your case to move forward.

6. Be civil/polite. Once again, you do not have to like the other side, their lawyer, or the judge. But the court expects you to be a responsible, articulate adult, and to extend some courtesy to the other participants in your court matter. If you come in like a rabid dog, with nothing to lose, you will be completely unsuccessful in not only defending the motion against you, but you will likely sabotage your other cases.

Conclusion

Very few people like going to court. But there is the odd client who enjoys it and sees going to court as their “playground,” to either address concerns they have with their legal affairs, to “right a wrong,” or to exact a pound of emotional or financial “flesh” from their adversary. Some people don’t know when to stop and wave the white flag of surrender, or of declaring a truce (please see my early blog on Waving the White Flag). Before you start a court case, or defend a court case, get some advice from an experienced lawyer who can advise you on what to do, and not to do, to be successful in your case. Otherwise, you are wasting time, effort, goodwill, and very importantly, money, not just for you, but for everyone involved. If that’s your intention though, to waste everyone’s resources (and it is for some), then expect to face the music. Don’t say you weren’t warned.

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289- 799-3080 or email me at carm@runcolaw.ca.