Author: Christopher Green
For most, the courtroom is a place to be avoided- it is stressful, expensive and the results arbitrary. But an irritating few actually thrive in the courtroom and conjure up the flimsiest of excuses to go there.We call them vexatious litigants -they refuse to give up once a judge has ruled against them, and keep coming back, starting new proceedings and re-working their pleadings to try to disguise their intent. Mostly they are self represented, as no lawyer can put up with representing them for long.
Vexatious litigants present a big problem for the courts, and an even larger one for anyone caught in their web, and the area of family law seems to attract more than its fair share of them- possibly because the parties in a family law proceeding are former intimate partners, and know how to push each other’s buttons, and because there is often a huge emotional and psychological battle raging in tandem with the legal one. Commonly, at least some of a family law litigant’s actions spring from a desire to punish their former spouse, rather than to resolve the legitimate issues between them. They have been badly wounded emotionally, and need to strike to back. Unfortunately, when the weapon at hand turns out to be the rules of court, we see needless court applications being brought, unreasonable positions being maintained, or sometimes brazen disregard for the rules of court themselves, just for the sake of bullying the opposite party.
Thankfully our Family Law Act gives us some tools we can use when faced with a litigant intent on weaponizing the court process. Chief amongst them in family law cases is S221 of the Family Law Act, which basically allows the presiding judge to put an egregiously misbehaving litigant in a form of straitjacket, limiting their ability to use the court process to terrorize their spouse, and punishing them monetarily if they persist.:
221 (1) A court may make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court if satisfied that the party
(a) has made an application that is trivial,
(b) is conducting a proceeding in a manner that is a misuse of the court process, or
(c) is otherwise acting in a manner that frustrates or misuses the court process.
(2) If an order is made under subsection (1), the court may do one or more of the following:
(a) make the order apply
(i) for a specified period of time, or
(ii) until the party has complied with an order made under this Act;
(b) impose any terms and conditions respecting the granting of leave to make further applications or to continue a proceeding;
(c) require the party to pay
(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party’s actions, including fees and expenses related to family dispute resolution,
(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party’s actions, or
(iii) a fine not exceeding $5 000.
Since invoking section 221 could significantly curtail a person’s right to participate in their own family law proceeding, it requires evidence, and some advocacy in order to obtain an order, and a body of decided cases has grown up, interpreting the section, and providing guidance as to when when an order under section 221 may be appropriate.
Trying to deal with a vexatious litigant, when its your buttons that are being pushed, can be excruciatingly difficult, and facing one is one situation where the services of a skilled family law lawyer can be priceless.Marshalling evidence, analysing complex caselaw, and presenting persuasive arguments in court are what they are trained to do, and having one at your side is the best way to level the playing field by obtaining a sewction 221 order.
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