Court procedures and tools that are designed to protect the most vulnerable people in our society can also be used as an abuse tactic by anyone willing to lie about being a victim to mislead the Honourable Court.
When the Court is told that there is family violence or some other significant threat of harm, the Court tends to error on the side of caution. A protection order could be granted or an urgent order with strict conditions might be granted to keep everyone safe before the abuse allegations can be properly investigated by the Court. There are a few common approaches that people take to use litigation to torment their ex including protection orders, ongoing and extreme accusations and numerous court applications resulting in escalating legal fees.
Emergency Protection Orders
Emergency Protection Orders (“EPO”) are probably one of the most misused tools in litigation abuse. EPOs are designed to be easily accessible for people in urgent situations that have an immediate need for protection from escalating family violence. When an EPO is granted, the accused (the “Respondent”) is not allowed to contact or be near the complaining person (the “Claimant”) until the first court date set for about nine days later. In the meantime, the Respondent can’t return home if it was shared with the Claimant, and he or she can’t communicate or visit the children if they were included under the protection order.
Sometimes people will lie or otherwise provide misleading information to obtain an EPO to “win” day-to-day care of their children and/or to receive exclusive possession of the family home without following the proper court procedures. The Claimant might even decide to obtain an EPO to break a lease and to abruptly move or sign a new rental agreement that boots the Respondent out of their home. There is nothing the Respondent could do to stop it. The Respondent is left entirely voiceless until the EPO Review Hearing which could be put over and eventually set for an Oral Hearing several weeks later.
EPO court proceedings can be adjourned multiple times before they’re eventually set for an Oral Hearing. The Respondent could be left with only the clothes on his or her back and absolutely no parenting time whatsoever during that time. The Respondent might eventually have the EPO vacated. By then, the Claimant will usually insist on keeping the “status quo,” being that they have day-to-day parenting time and exclusive possession of the family home. And of course, in the Claimant will continue to bring up the fact there was an EPO at every opportunity, even after the protection expired, because the EPO has a stigma attached to it.
Substance Abuse & Mental Health Issues
Another common tactic used in litigation abuse is for one parent to mislead the Honourable Court that the other parent is unsafe to be around their children right now. The “concerned” parent will raise issues with respect to substance abuse, alcohol consumption and/or mental health concerns. These issues suggest that the parent is not in the right state of mind to parent and the children are at a significant risk.
The difference between genuine concern and litigation abuse can be hard to distinguish on the surface. In both situations, the concerned parent might raise serious concerns like the other parent driving under the influence with the children in the backseat. A parent that sincerely believes that the children are unsafe will eventually find peace when the underlying issue is addressed. On the other hand, in litigation abuse, the complaining parent will just move on to the next issue on their never-ending list of concerns.
Attacking Parenting Abilities
Another common tactic used in litigation abuse is for one parent to be hypercritical of any little thing the other parent does with respect to parenting their child. The difference that sets apart “genuine concern” from “litigation abuse” comes down to the actions of the concerned parent. A truly concerned parent will be consistent in their words and actions. On the other hand, a parent that just wants to play their ex out to be a monster, will say things that are inconsistent or don’t match their actions.
In a shared parenting arrangement, one parent might be able to provide childcare when the other parent is required to work. The other parent might refuse this offer, complaining that the child is not fed by the parent. A child not being fed is a big issue. First, if it is indeed true, the situation should be investigated by Child and Family Services (“CFS”) because the child spends an equal amount of time in both households. A parent’s obligation to their child does not end the moment the child is exchanged to the other parent. Second, if the availability of food for the child is a concern, packing a lunch and/or snacks would address the issue. Parents trying to advocate for their children will take necessary steps to address the issue. On the other hand, a parent that is only trying to bolster their case for Court, will not.
No mistakes Are Forgiven
Another common characteristic of litigation abuse is that there is no forgiveness whatsoever. The dynamics of litigation abuse prevent the complaining parent from acknowledging genuine human error. When litigation is at play, there is no such thing as an “honest mistake” because any scrapes, bumps, bruises or major traffic jams that result in being minutes late for an exchange can give the abuser an opportunity to run back to court to ask to vary the order.
A complaining parent might take things a step further and orchestrate a scenario that would trigger a negative reaction from the other parent. An abuser might try to have others present to witness the setup, or there might be some other form of surveillance to document it. A camera might be hidden to capture when the targeted person loses their cool. Of course, only part of the footage released would be of one person flying off the deep end for seemingly no reason. Text messages are also commonly cherry picked to make one person look bad when the full context of all of the messages would paint a different picture. Litigation abuse usually involves some form of pattern of traps strategically set to support an abuser’s narrative.
Inflated Legal Fees & Costs
If litigation abuse is not detected early on, the harm to the targeted person and any children can be significant. The victim’s mental, emotional, physical, and financial well-being are at risk of being pushed to their limits. Litigation abuse is designed to try and force the targeted person to respond to an excessive number of correspondence and court applications that are loaded with extreme accusations and misrepresentations of fact. The approach used in dealing with litigation abuse is not the same method used when an amicable resolution is possible.
A common goal of litigation abuse is to cost the other party as much as possible. The cost could be the other person’s reputation, their mental health or their financial resources that are being used for always increasing legal fees. Of course, the legal fees rarely seem to amount to any form of measurable resolution because problem solving is not the abuser’s goal. The goal is to have the targeted person’s lawyer charge them for sending and responding to as many letters as possible. The goal is to increase the amount of costs the targeted person must pay to their lawyer for their legal representation inside and outside of the courtroom.
A perpetrator of litigation abuse generally rejects any evidence offered on the behalf of the targeted person. Any “free” evidence from friends, family members, doctors or advocates could be disputed. It’s often suggested that those people have reason to lie, or those people do not know the full story. The abuser might insist that the evidence to be from an expensive professional expert that charged thousands of dollars to prepare a report. On top of that, a targeted parent might be stuck paying for supervised visits, drug and alcohol testing, or other specialists because of the extreme and high-conflict nature of the allegations. The parent pulling the strings sometimes “wins” by leaving the other parent completely depleted of the funds and mental strength needed to continue to fight the never-ending uphill battle.
Does it ever get better?
In high-conflict situations where litigation abuse is at play, early intervention can make a huge difference. Counsellors and other non-legal support services should be sought out and used for when things get tough, which they will. Litigation abuse also requires experienced legal assistance, which can be extremely expensive. Legal fees are a burden for most in simple matters where both sides are willing to settle things in good faith. The costs are substantially higher when the Court must make a decision on each and every issue. It can push a person to abandon everything (even the children) just to make the suffering end once and for all.
Edmonton Family Network recommends pushing back by exploring all lawyer and non-lawyer options. Legal coaches and independent paralegals could be a good option for people that are experiencing litigation abuse. These professionals teach people how to navigate the court system independently, which allows for the disconnect of legal representation. Legal coaches empower people that are stuck paying legal fees (with no measurable progress in return) to do it themselves for free. Ending a client-solicitor relationship to become self-represented is not a personal attack on the lawyer in these circumstances. Sometimes, it’s simply just the best option to regain control and to cut costs that are being lost through litigation abuse. A lawyer is a problem solver, but even the best lawyer in the world can’t solve problems if the other side is not acting in good faith and using their billing procedures as an abuse tactic.