Exploring litigation abuse in Ontario: An analysis of costs decisions

• Published date: 01 October 2024
• Author: Nicholas Bala,Ella Benedetti,Sydney Franzmann
• Date: 01 October 2024
• DOI: http://doi.org/10.1111/fcre.12819

ORIGINAL ARTICLE

Exploring litigation abuse in Ontario: An analysis

of costs decisions

Nicholas Bala | Ella Benedetti | Sydney Franzmann

Faculty of Law, Queen's University, Kingston, Ontario, Canada

Correspondence

Nicholas Bala, Faculty of Law, Queen's

University, Kingston, K7L 3N6, ON Canada.

Email: bala@queensu.ca

Abstract

Litigation abuse is a pattern of conduct that misuses the Fam-

ily Court process in a way that could reasonably be expected

to cause emotional or financial harm to the other party or

their children which is greater than would occur with the

proper use of the family justice process. Litigation abuse may

be motivated by a perpetrator's desire to gain an unfair

advantage in the litigation or to control a former partner, or

may be the result of anger, vengeance, or mental health

issues. Litigation abuse is a particular concern in cases of coer-

cive controlling violence that may victimize women and their

children, or in cases that involve parental alienation. Previous

empirical research has mainly involved studies of women who

report that they have been victims of litigation abuse, with

one study focusing exclusively on male victims. No previous

study has considered both men and women as possible vic-

tims (or perpetrators) of litigation abuse, or the perspectives

of neutral professionals like judges for assessing whether

there has been litigation abuse. This empirical research project

is based on an analysis of Ontario Family Court decisions over

a three-year period dealing with litigation costs, which under

provincial law may be awarded at a higher level against a

party whom the judge considers acted unreasonably, vexa-

tiously or in bad faith during litigation (n=222). Men were

DOI: 10.1111/fcre.12819

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

© 2024 The Author(s). Family Court Review published by Wiley Periodicals LLC on behalf of Association of Family and Conciliation

Courts.

936 Family Court Rev. 2024;62:936–961.

wileyonlinelibrary.com/journal/fcre

somewhat more likely to have engaged in litigation abuse than

women (53% vs 47%). Self-represented litigants were roughly

twice as likely to engage inlitigation abuse, though most cases

of litigation abuse involved parties with lawyers. Women

were more likely be victims of litigation abuse in economic

cases, while men were more likely to be victims of litigation

abuse in cases focused on parenting.

KEYWORDS

costs of family litigation, family court, high conflict separation, legal

fees awarded, litigation abuse

Key points for the family court community

•Family justice professionals often fail to recognize litiga-

tion abuse, which is a pattern of conduct that misuses

the Family Court process in a way that could reasonably

be expected to cause emotional or financial harm to the

other party or their children which is greater than would

occur with the proper use of the family justice process.

•Litigation abuse often causes victims of intimate partner

violence to give up claims or agree to outcomes that

impoverishthem or expose them and their childrento risk.

•Although men are somewhat more likely to engage in liti-

gation abuse than women, especially to gain economic

advantages, women also engage in litigation abuse.

•While self-represented litigants are more likely to engage

in litigation abuse than those with lawyers, there are

many cases where litigants with lawyers engage in litiga-

tion abuse, raising ethical issues for lawyers.

•Judges should recognize cases of litigation abuse, and

respondwithsinglejudgecasemanagement, orders for pay-

ment of legal costs, and take account of this form of abuse

in making orders regarding parents and economic issues.

INTRODUCTION: LITIGATION ABUSE AND LIMITATIONS OF EXISTING

RESEARCH

If consensual dispute resolution is not appropriate or possible, the Family Court process is intended to allow former

partners to have a judge resolve factual and legal disputes about post-separation economic and parenting issues in a

cost-effective, child-focused, civil fashion. All too often, however, this does not occur. The dispute resolution process

BALA ET AL.937