Stalking by Court: Legal Bullying and What Can Be Done About It
by Pamela Cross, January 6, 2005
The Ontario Women's Justice Network hears from many women who have left abusive partners only to find the abuse continue post-separation. Most often, the abuse takes the form of stalking.
For many women, especially those with children, misuse of family court by their former partner is a common strategy. Sometimes called "legal bullying" ("Legal Bullying: Abusive Litigation within Family Law Proceedings", Esther L. Lenkinski, Barbara Orser, Alana Schwartz, 22 C.F.L.Q., 337), this form of harassment can take a number of forms. For example, the ex-partner may:
fail to obey court orders
bring repeated motions on already decided issues
appeal decisions even when there is no hope of success
make complaints about various professionals involved in the process (lawyers, judges, mediators, family assessors, etc.)
seek repeated delays with no real grounds for this
represent himself when there is no financial need to do so
repeatedly change lawyers, thus slowing the process down
withhold information (such as financial disclosure) or insist on unreasonable disclosure from the other party
make malicious reports to the court and other officials (child protection authorities, housing personnel, Ontario Works, etc.) about the woman.
This harassment is extremely problematic to the victim:
She may have real fears for her physical safety at the hands of her abuser which are exacerbated by ongoing contact with him.
This bullying may follow years of psychological abuse within the relationship, which makes her very vulnerable to him.
She may concede on issues against her better judgment, simply to make the harassment stop. In some cases, these concessions could jeopardize the safety of her and/or her children.
She will almost certainly incur legal costs she can ill afford, if she is required to return to court again and again to respond to his vexacious motions, appeals etc.
If she has to represent herself, she may have to take repeated time away from work and will have to participate in ongoing contact with her abuser - direct contact if he has chosen to represent himself - which could be very dangerous for her.
If his tactics include calling child protection authorities, her Ontario Works worker and others, she (and the children) may be required to undergo repeated investigations by these officials.
Her employer, if she is working, may not be willing to keep an employee who is constantly distracted by legal problems.
The children will also be affected by the ongoing tension and uncertainty of repeated court proceedings.
Of course, the overall goal of the abuser is to maintain his control over his former partner and prevent her from moving on with her life. Legal bullying is very effective at achieving this goal, as the woman usually has no choice but to respond to the legal initiatives or allegations of the abuser.
The nature of family law makes it difficult to deal with a legal bully. By definition, no case involving children is ever truly over. Legitimate, significant changes in the circumstances of either parent or the children can make it necessary to change court orders. For example, a final child support order must be open to revision in the event that the payor experiences a significant change - either up or down - in his income. A custody order will change if, say, the custodial parent is no longer able to care for the child for health or other reasons. Access will change if either party has to move such that the present arrangement would no longer be feasible.
Because of this open-ended nature of family law, it is easy for an abuser to find ways to manipulate the system and the process to keep control over his former partner.
There are some potential legal strategies for dealing with harassment of this sort:
The Family Law Rules give judges the authority to make orders with respect to procedural matters such as disclosure of financial information.
New case management processes make it more difficult to endlessly delay proceedings.
The Rules of Civil Procedure allow judges to make contempt orders against parties who act in defiance of court procedures or orders (Rule 60.11) and can order the bully to pay all the costs of the victim when he brings harassing matters in front of the court (Rule 57) - although collecting on these cost orders is another matter.
Judges can also make an order, under section 140 of the Courts of Justice Act, to prohibit a party from instituting further court proceedings without specific permission from the court. Often the judge will identify the bully as a "vexatious litigant" in such a case.
Strategies for women are also listed here.
If violence against women and abuse within families were better understood by everyone involved in the family court system (lawyers, mediators, assessors, court clerks, judges, legal aid staff) they would be able to identify these patterns more quickly and to move more quickly to control the actions of an abuser.
Until that time, as the authors of the above-noted paper conclude:
"The result of protracted legal bullying . . . is simply that bullies win. They are able to control the court system in order to harass and pursue their victims without an effective or expedient resolution to address this behaviour."