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Was 47 Trips to Court Enough to Make Wife a “Vexatious Litigant”?

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Was 47 Trips to Court Enough to Make Wife a “Vexatious Litigant”?

In McKee v. McKee, the 79-year-old husband brought a motion to have his 71-year-old former wife declared a “vexatious litigant,” which designation would prevent her from directly or indirectly bringing anything to court without the permission of a judge – i.e. any action, application, motion or proceeding.   The wife, not surprisingly, opposed the order.

The couple, who had been married for almost 30 years, separated in 2012 and were granted a divorce in 2016.  Under a subsequent order in 2017, Justice Pazaratz issued a mutual restraining order, preventing either former spouse from contacting or even speaking the other person’s name, except as required by the legal proceedings.

In that prior ruling, Justice Pazaratz noted that despite their advanced ages, neither party was behaving with “the maturity or dignity that one would expect given the stage of their lives, and all of their previous positive accomplishments.”  Justice Pazaratz stated that it was clear to him:

…that these parties have unresolved animosity toward one another and bitterness about previous court determinations, and these destructive and unchecked emotions are fueling this endless litigation.

As a court system we have to ensure access to justice for everyone, but that also entails an obligation to ensure that court resources are allocated appropriately, I have tried to explain to both of these parties that taxpayers do not have a bottomless pit of money to pay for their incessant legal feuding, and that after 9 volumes and 47 court attendances these parties have pretty much exhausted our tolerance from any further wasteful court proceedings.

A mere seven days after Justice Pazaratz made this order, the wife pursued a motion to set it aside, and to declare that only the husband should be subject to a restraining order – not her.  She also asked the court to make “different laws” for the husband filing court documents, than the ones to which she was subject.    In her affidavit in support of various complaints about prior court rulings and the judges who made them, she complained that she “was not going to get justice,” and offered a litany of complaints of the wrongs she perceived to have suffered at the hands of those previous judges.

In light of this scenario, the husband asked the court to declare the wife a vexatious litigant.   The court showed almost no hesitation in doing so.

The court examined the established legal test for making that determination, as set out in a decision called Lang Michener Lash Johnston v. Fabian.  That case stated the relevant factors included whether:

  • The wife was bringing an action to determine an issue that has already been determined by another court;
  • It was obvious that the wife’s action cannot succeed, or that her action would lead to no possible good, or that no reasonable person could reasonably expect to obtain relief;
  • The vexatious actions were brought for an improper purpose, and include harassing and oppressing the husband; and
  • The issues and grounds previously raised by the wife have been rolled forward into subsequent actions and repeated, often with actions against the wife’s own lawyers.

The court emphasized that not all of these factors needed to be present; however, the court must look at the whole history of the matter in making the determination. This also included looking at whether: 1) the wife failed to pay the costs of unsuccessful proceedings; and 2) she was persistently unsuccessful in her appeals of judicial decisions.

In this case, the court found that almost all of these applied to the wife: She had brought numerous repetitive proceedings to set aside prior orders, brought unsuccessful appeals, and generally acted in a manner that made it clear her motive was to harass the husband, who was in ill health.  Her materials were replete with criticisms not with her lawyers (she was now self-represented) but of previous judges who had ruled on her claims.  None of her court proceedings were based on a good cause of action.

Overall, the court concluded that “no possible good can be had” from the wife’s litigation, and her conduct was “indicative of persistent and unwarranted pursuit of legal proceedings that are both meritless and frivolous.” She should no longer be permitted unrestrained access to the courts of Ontario; she was accordingly barred from coming back to any court with any proceeding against the husband, without first obtaining a judge’s permission.

For the full text of the decisions, see:

McKee v. McKee

Lang Michener Lash Johnston v. Fabian

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com