Court Cases & Orders

Family Court Proceedings as an “Abusive Game” and a “Destructive Tool” – One Judge’s View

Written by Russell Alexander / (905) 655-6335

It’s not uncommon for judges to hint at some exasperation at the way Family Law litigation is conducted by the parties to it, particularly there has been a lack of compliance and cooperation by one or both of them. But in a case called Levely v. Levely, 2013 ONSC 1026, the court was unusually direct in condemning the way in which litigation is used in the hands of some parties, calling it a “destructive tool” in an “abusive game”.

In Levely, the couple had separated after 12 years of marriage and two children. In the course of the ensuing Family Law proceedings, the father had repeatedly failed to appear for scheduled case conferences, refused to comply with various court-imposed orders and timelines, and ignored directions from the court aimed specifically at making him comply. He also failed to provide financial disclosure and failed to pay costs that had been previously ordered.

But while the father’s lack of cooperation in the court process was blatant, it was also selective: he later brought a motion himself to change an earlier order requiring him to pay child support of over $1,000 per month.

Against this background – and after pointing out that the court had inherent jurisdiction to “make any order it considers appropriate in order to address a party’s failure to respect the court process, including a failure to comply with court orders” – the court wrote:

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders.

The court, in reflecting more theoretically on the powers that it had to curtail the husband’s misbehavior in this case, went on as follows:

Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

After concluding that Family Law judges have a “toolbox” of methods for preventing a party from “embarking on a game of litigation abuse”, the court added:

Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.

Here, the father had initiated the latest motion, yet had not bothered to show up at previous hearings initiated by the mother. This alone entitled the court to dismiss his motion, strike out all documents that he had filed in support, and allow the mother’s responding claims to go ahead uncontested.

But then the court went further: in view of the father’s brazen and persistent disregard of both court processes and orders, it made an order that (among other things) actually prohibited the father from commencing any further proceedings until he: 1) complied with outstanding orders; and 2) paid $5,000 into court as security for costs.

The comments of the court in the Levely decision raise a good question: Has Family Law litigation become an “abusive game”?

What are your thoughts?

For the full text of the decision, see:

Levely v. Levely, 2013 ONSC 1026

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.