When parties get a divorce, there can be a high degree of conflict during their family law proceedings, especially when it escalates to court. It is not uncommon for parties to feel that the other party is pursuing unnecessary court applications or playing a role in exacerbating conflict.  In high-conflict scenarios, it may be that a party would be considered a “vexatious litigant,” which can allow the court to impose certain procedures to ensure that the litigation process is kept under control. However, this requires a finding that the litigant has gone beyond what is appropriate in a court proceeding, which is often a high bar, considering conflict is expected in most litigation. 

In this post, we will describe who would be considered a “vexatious” litigant in family court in Alberta, as well as the ways that a court can limit this type of litigant to ensure that parties are using court procedures appropriately. We will also describe the actions that may be considered vexatious during litigation. This post will provide key insights for parties dealing with a high-conflict family law proceeding and provide guidance on when a party may be going too far in litigation

Who is a Vexatious Litigant in Family Court?

Generally, a vexatious litigant has been restricted from accessing certain court procedures after a court has found that they have abused these processes. Vexatious litigants often file multiple court applications for issues already resolved by a court or bring many applications without a legitimate basis. This includes bringing appeals with no legitimate claim nor valid issue to be reviewed by the court.

What Actions May Be Considered Vexatious?

The following actions may be considered vexatious:

  1. Continually bringing applications on issues that have already been determined by a court;
  2. Using a proceeding to effectively get around an existing court order;
  3. Bringing proceedings or appeals that have no reasonable expectation to succeed or provide any relief; 
  4. Seeking excessive remedies or costs that are highly disproportionate to the matter at hand; 
  5. Adding unrelated issues to the proceeding; 
  6. Bringing proceedings to disrupt or frustrate other litigation or to extort a settlement;
  7. Bringing litigation as a form of revenge, harassment, or harm; 
  8. Failing to comply with court orders, including paying costs;
  9. Persistent inappropriate courtroom behaviour; 
  10. Making allegations of conspiracy, fraud, or misconduct without evidence;
  11. Scandalous or inflammatory language in pleadings filed before the court.

The above is not an exhaustive list, and the court will assess what combination of issues above are at play.

Alberta Family Court Can Limit Vexatious Litigants

The court has an inherent ability to manage its procedures. Also, in the Alberta Family Law Act sections 91-93, the court can control its procedures for frivolous or vexatious applications. If the court finds that a party has made a frivolous or vexatious application to the court, the court can limit that person from making additional applications without the court’s permission. Even if the court decides to grant permission for a party to proceed with their application, the court can also impose specific conditions as a result of granting permission to file the application. It is up to the court to decide if additional conditions or orders are needed, depending on the particular case.

The court also has the ability under the Family Law Act to award costs based on any vexatious or frivolous applications.

If the court is considering limiting a party’s applications, the court must balance procedural fairness for the potentially vexatious litigant as well, which is a two-step process. First, the court needs to determine if the party abused the court’s processes or if there is evidence that the party is vexatious to an extent that would justify limits on their access to court processes or other disciplinary action. Secondly, the court must decide what restrictions may be necessary. Any procedural limits to manage a litigant’s behaviour should be clearly laid out, especially if the restrictions apply to a self-represented litigant. To uphold procedural fairness, the potentially vexatious litigant must be given the opportunity to make submissions on whether the restrictions are appropriate and what the scope should be.

The court’s restrictions are part of litigation management to handle future abuses of court processes so that they do not deplete the court’s resources and the responding party. They are not meant to punish a party for their previous litigation conduct, as this is addressed with a costs award. 

Certain requirements must be met if a court restricts a litigant’s access to court procedures. The order must include the following:

  1. The legislation that allows the restriction on accessing court processes (i.e. section 91 and onwards of the Family Law Act);
  2. A description of the activity being restricted such as filing an application, or restriction on filing certain types of applications; 
  3. Any requirements or preconditions that must be satisfied before the litigant applies for permission to file their claim, including what documents are necessary for seeking permission; 
  4. If there are any specific judges that the application should be directed to; 
  5. How the application will be heard; 
  6. Requiring that the party seeking permission to also provide notice to other parties that they are seeking permission from the court to file additional applications.

The courts have also noted that it can be difficult for self-represented litigants to navigate the court system, so vexatious litigant orders are generally only made as a last resort when other management procedures would be inadequate. These orders must be proportional to the conduct based on the record and limited to ensure they address the specific problem. Litigants must be allowed to correct their behaviour before their court access is limited. 

Key Takeaways 

Vexatious litigants may be involved in high-conflict cases, such as divorce proceedings, so it is important to know what the court can do to limit their abuse of the court process. However, there is typically a high bar to find that a party is a vexatious litigant, even when the parties seek to escalate conflict during a proceeding. Nevertheless, it is important for parties to be aware of these types of issues to prepare for litigation if necessary.

Contact Mincher Koeman Family Lawyers For Assistance On Litigation

While there are many avenues to resolving a family law matter, such as written agreements and mediation, some high-conflict cases may end up in litigation. Our family law lawyers at Mincher Koeman are experienced in assisting parties with litigation for issues such as property division, child support, and more. Our Calgary family law lawyers are dedicated to finding the best resolution for your divorce matter

To book a consultation, please contact us online, or by phone at 403-910-3000

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