Litigation may be a necessary step for individuals involved in family law disputes, especially if they have been unable to resolve their matter through alternative methods like mediation or arbitration. Litigation can be effective in such situations as it does not require the parties to agree but instead imposes a decision on the parties based on the governing legal principles. However, litigation can be misused as a tool for harassment or abuse in high-conflict disputes or where there is a large power or financial imbalance between the parties.
One Alberta woman has been undergoing what some have called legal abuse or legal bullying, which has kept her from seeing her youngest child for more than a year after her ex-husband stopped complying with a court-ordered parenting arrangement. A recent CBC article detailed the ongoing situation this woman has faced, as well as the roadblocks she’s encountered not just from her former spouse but from the courts.
The subject of the article has three children with her ex-husband. Although two of the children are no longer minors, their youngest child (the subject of the current proceedings) is 10 years old. The mother has been unable to see her daughter for over a year, despite an existing court order entitling each parent to a 50/50 split in parenting time with the child.
The father, a former Calgary police officer, has a history of violence and threatening behaviour. In 2011, he was criminally charged with assault relating to his treatment of an Indigenous man he had arrested. He was suspended with pay at the time and was ordered to stand trial in 2014 before the Crown dropped the charges. He resigned shortly thereafter and began working as a prison guard.
After the mother and father separated, the mother moved out of their shared home and began a new relationship. In 2019, the father began to send threatening texts to the mother, claiming he was going to kill her boyfriend and himself. Responding to a call from the mother, police found the father inebriated outside her apartment, armed with a knife. He was charged with several offences, including possession of a weapon, death threats, stalking, and criminal harassment.
Police advised the mother to seek an emergency protection order and gave evidence on her behalf at the hearing. The order was granted soon after. However, despite the protection order, the family court judge ordered the parents to share parenting time 50/50 and required the couple to meet in person to exchange care of their daughter. Two months after the protection order was issued, the family court judge quashed the order, despite evidence from local police that it was necessary.
Before the father began to withhold their daughter from the mother, he engaged in behaviour that could be considered parental alienation. When the child was with the mother, he would send hourly texts to the child, counting down the time until the child would be returned to him. One text read, “Less than two hours! Then back with your family”. He also sent texts to the child claiming the mother was preventing the child from speaking with him or was monitoring their conversations.
The father began to increasingly withhold the daughter from the mother. At the time of the media reporting on the case, it had been over a year since the mother had seen her daughter in person. When the mother attempted to enforce the parenting order in November 2021, the court refused the application, citing $4,500 in costs that the mother owed under a prior order.
The judge presiding over the case also ordered a parental assessment of both parents. Parental assessments are required to be performed by a psychologist or social worker. However, the woman approved to perform the assessment is reportedly neither but is a counsellor specializing in child trauma. It is also reported that she is a close friend of the father’s new spouse.
The mother raised the issue of a potential conflict of interest regarding the assessor to the court. However, her application to have the assessor dismissed was denied. The assessor has since recommended that the mother be permitted just four hours of supervised parenting time per month with her daughter.
Legal abuse, sometimes known as legal harassment or legal bullying, is becoming increasingly recognized as an unfortunate presence in some family disputes. It may take various forms, but in general, it is characterized as one party using ongoing legal processes to harass and abuse another. In a family law context, this may include behaviour such as:
Speaking with the CBC, University of Calgary law professor Jennifer Koshan said that much of the father’s behaviour “appears to have many of the hallmarks of” legal abuse. Koshan notes that courts are starting to recognize this type of abuse and respond accordingly, but she raised concerns with the court’s handling of this particular case.
Professor Koshan noted that the procedural history of this matter seems to be in direct conflict with the emphasis placed on the best interests of the child in all parenting and family law matters in Canada. Courts and lawyers are meant to encourage parenting arrangements that allow for maximum contact with each parent unless such an order would be inappropriate.
One of the major considerations when examining the best interests of a child is family violence. In this case, the mother has been denied contact with her child for over a year over issues such as unpaid legal costs, while her former spouse, who has a history of domestic violence charges, has been permitted to ignore parenting orders.
Speaking about the court’s reasoning for denying the mother’s application to enforce the parenting order, Professor Koshan said:
“I think it is inappropriate for a court to withhold a parent’s access to their child until they pay court costs. Access should be based on what is in the best interests of the child and withholding parenting time based on failure to pay costs contradicts that principle”.
The issue of legal abuse is complex and varied, as it can take many forms. At Mincher Koeman, our family lawyers advocate for clients facing abusive or harassing legal tactics to help protect their rights and their reputation. We also work with clients fearing violence or abuse to help ensure they remain safe throughout your family dispute. We have considerable experience working with clients in need of protection through restraining orders or emergency protection orders. Contact our office for an urgent consultation today by phone at 403-910-3000 or reach out online.
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