In a recent case before the Ontario Superior Court of Justice, a husband sought to have his wife, from whom he was separated, declared a vexatious litigant following 47 trips to court. If he were to be successful in his application, the wife would be prevented from brining anything (actions, applications, motions, etc.) before the courts without the permission of a judge.

A series of motions and applications

The couple were married in 1983 and separated in 2012. Shortly thereafter the wife brought an application seeking relief typical to a separation, such as spousal support and the division of assets. A judgment addressing each issue was issued following a 14 day trial.

In August 2016 the husband commenced a motion to change the judgment, specifically looking to terminate the spousal support ordered in it. He also brought a divorce application. The divorce was granted on May 2, 2017.

The wife brought an application – her 47th  –  for a restraining order in August 2017, but failed to attend both the first court appearance as well as the case conference for her application, but did attend the hearing on November 7, 2017. The wife’s application was dismissed, though a mutual restraining order was instated, prohibiting either party from contacting or even speaking the other person’s name unless required to in court. In issuing the order, the judge stated that despite the husband being 77 years old and the wife being 69 years old, 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.” The judge also wrote

“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 lesson not learned

Just seven days after the ruling, the wife brought a motion to set it aside and sought to declare that only the husband be subject to a restraining order. The husband responded by asking the court to declare the wife a vexatious litigant.

In addressing the husband’s application the court looked at the established principals of a vexatious litigant, listing them as:

 (a)  the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding;

(b)           where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c)           vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d)           it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e)           in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f)            the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

(g)           the respondent’s conduct and persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

The court explained that not every principle has to be established, but also stated the power to declare someone a vexation litigant must be exercised “sparingly and with the greatest of care.” In either case, the court found the wife’s behavior to apply to most of the principles, quoting her behavior as “indicative of persistent and unwarranted pursuit of legal proceedings that are both meritless and frivolous.” As a result, the court declared her a vexatious litigant.

Separation and Divorce can be stressful events to go through. The experienced team of Borden Family Lawyers helps our clients navigate all areas of family law, keeping your interests front and center while working towards a resolution. We focus exclusively on family law, and as such, are able to offer an in-depth understanding of the family legal system and the best strategies to apply to it. Please contact us online or by phone at 905-576-6090 to schedule a consultation. Please remember to ask about our flat fees.