Exploring litigation abuse in Ontario: An analysis of costs decisions

Abstract

Litigation abuse 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 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 coercive 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 victims (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, vexatiously or in bad faith during litigation (n = 222). Men were somewhat more likely to have engaged in litigation abuse than women (53% vs 47%). Self-represented litigants were roughly twice as likely to engage in litigation 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.