What are “Invisible Litigants” in Family Law?
Recently we wrote about an Ontario Court of Appeal decision in a case called Leitch v. Novac which focused primarily on the interesting legal issue of whether, in the Family Law context, it is possible for one spouse to commit civil conspiracy against the other spouse.
In that decision, the Appeal Court also lamented what it called the “cancer” of the Family Law justice system and the court proceedings that wend their way through it: The lack of full and frank disclosure by one or both former spouses. This often translates into deliberate non-disclosure of income and assets, or the cloaking of interests in various enterprises that would otherwise be highly relevant to the fair and fulsome division of assets in the Family litigation between them.
Against that background, the Court of Appeal went on to reflect on another phenomenon in Family justice, which it called “invisible litigants”. The Court explained:
There is a related malady that often works hand-in-hand with nondisclosure to deny justice in family law proceedings. The problem is what I will call “invisible litigants.” These are family members or friends of a family law litigant who insert themselves into the litigation process. They go beyond providing emotional support during a difficult time to become active participants in the litigation. Usually their intentions are good, and their interference makes no difference in the ultimate result. However, sometimes they introduce or reinforce a win-at-all-costs litigation mentality. These invisible litigants are willing to break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income.
After noting the existence of such third-party “invisible litigants”, the Court of Appeal considered their role in Family Law disputes between spouses, as that informed the legal analysis on whether civil conspiracy claims had any proper place in them. The Court rejected the motion judge’s prior conclusion on this issue, stating:
If we were to accept the analysis of the motion judge, co-conspirators who engage in such behaviour could do so with impunity. Contrary to the observation of the motion judge, conspiracy is not a “blunt instrument” to respond to this misconduct. It is a valuable tool in the judicial toolbox to ensure fairness in the process and achieve justice. If the tort of conspiracy is not available, then co-conspirators have no skin in the game. Their participation in hiding income or assets is a no-risk proposition. If their conduct is exposed, all that happens is that the payor will be forced to pay what is appropriately owing. If there is to be deterrence, there must be consequences for co-conspirators who are prepared to facilitate nondisclosure.
Thus with one fell swoop, the Court of Appeal in Leitch v. Novac added the tort of conspiracy to the Family Courts’ existing arsenal, as a means for redressing conspiratorial schemes by spouses to thwart justice through non-disclosure.
For the full text of the decision, see:
Leitch v. Novac, 2020 ONCA 257