When Does Bad Litigation Conduct Constitute Family Violence?

GeorgiaLeeLang025Family law litigation is not for the faint of heart. But are delays in financial disclosure, character assassination, including allegations of parental alienation, financial mismanagement, manipulation of mental health professionals, perjury, and a general failure to act in good faith, sufficient to persuade a judge to award special costs against an allegedly unruly litigant or vary a final order regarding the division of family property?

In K.M.H. v. P.S.W. 2018 BCSC 2022 the Court said “no”, in circumstances where the applicant gave as good as she got. While the court acknowledged that the litigation had been both lengthy and difficult, the court said it would not be fair to place the blame exclusively on her spouse and that both were responsible for the unpleasant circumstances. The Court also commented that each of the parties complained of stress related to the litigation yet neither party seemed capable of extricating themselves from the fray.

The wife’s complaint that the husband had failed to provide full disclosure was also rejected by the Court who reviewed the case of M.W.B. v. A.R.B. 2013 BCSC 885 where following a trial the parties engaged in four additional hearings all driven by the wife’s refusal to settle the order and resolve costs in a reasonable fashion and her interference with her spouse’s parenting time and the ordered sale of a commercial property. The events post-trial contributed to a significant medical issue for the spouse.

The Court held:

“I find the Respondent’s litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence.

The Respondent’s conduct and needless litigation has forced the Claimant to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources.”

Similarly, in CLM v. MJS 2017 BCSC 799 the Court found that litigation conduct constituted family violence where the wife did not cooperate with the sale of the family home, did not abide by court orders, failed to provide full financial disclosure, and was generally obstructionist throughout the litigation. Her conduct forced the Respondent to incur unnecessary litigation expenses and consumed his emotional resources to the disadvantage of his children.

The question remains “why do otherwise good people treat their spouses in such an abominable way?” Psychologists tell us that the more hostile the divorce the harder it is for individuals to move on with their lives and that some spouses are unable to let go of the conflict even a decade after their divorce. Therapy and counselling is the only way to let it all go.

Lawdiva aka Georgialee Lang

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3 thoughts on “When Does Bad Litigation Conduct Constitute Family Violence?

  1. Great article. Prior to going through a divorce, I supported a friend who was (and still is) engaged in a divorce that, after 15-years is still not complete. At that time, I shook my head and said, “man ..they are nuts”. Then it happened to me.

    It is very tempting to wag your finger at both parties and declare them both nuts. But what happens when only one party is the uncooperative one: keeping kids away, not signing orders, 5-counsellors quitting because they cannot work with that party, false accusations, non disclosure, endless requests for adjournments. The works.

    An outsider would reasonably conclude…’well no Judge is going to sit back and let that happen’. That outsider be wrong. Our court system (notice I didn’t say justice system) lets it happen all the time. Non-compliance is an effective and proven tool. Non-compliance allows the offending ex to entrench alienation, create parenting time status quo (which courts are loathe to resile from) and allow interim financial support orders to drag on for years, when they should be short term. Then, when the file is ready for trial, time to change lawyers.

    Add that to the fact that getting a 3-day hearing before a seized judge in a small town can take 3-months…and judgments are reserved 6-months…and (in my case) it took a year and four trips to court to get the order entered. Shazammm….22 months. And then the other side just ignores the order. You can bring on a contempt application, but you’ll be a grandparent before the matter is concluded.

    BC needs to take a page from Ontario. We need dedicated Family Court Judges equipped with special training in alienation, family centric psychology and flexible court hours. Moreover, they need to move quickly to bring the boom down on parties that play the system. I simply cannot believe that a skilled, trained judge would allow the goofiness to continue…but they do. And let’s face it, they know what’s going on…they just detest getting assigned family files and they shuffle the parties out the door as quickly as possible.

    Bring on better trained Judges….who aren’t afraid to make timely decisions …and the foolishness referred in your article would quickly vanish. This stuff happens for a reason.

    1. Couldn’t agree with you more…as the Family Law Chairperson for the Trial Lawyers Association of BC we have just formalized a submission to government on the need for a unified family court with dedicated judges who are skilled in family law. All of what you say is true!

      1. Thanks GL….if you ever want a layperson on that committee (who has successfully run a 26-day trial) … I would be happy to volunteer. It’s important work.

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