Practical Tips for Dealing with the Application Prone Litigant

A disproportionately small number of litigants are responsible for a surprisingly large amount of litigation. These high-conflict couples, usually estimated at five to ten percent of the divorcing population, will find themselves in court on dozen or more chambers applications before trial, and back in court on a half-dozen or more chambers applications after trial.

The problem for people stuck on the receiving end of a plague of applications is that they must reply to each and every application or risk a judgment being made in default and, if they have lawyers, the cost can be crippling. Unfortunately there's no rule of court that screens out hopeless applications or puts a limit on the number of applications that can be made. Here are some options.

Costs, costs and more costs

"Costs" are a financial penalty usually awarded against the party whose position was the most unrealistic or most unreasonable in a court action. (Costs aren't a lawyer's bill, it's an amount calculated using the formula set out in Appendix B of the Supreme Court Family Rules.) Costs can also be awarded for applications made in the course of a court action.

Most of the time, the costs of applications are determined when costs of the court action are being decided. However, under Rule 16-1 the court can make an order about costs when an application has been heard and make an order that they be payable right away. Rule 16-1(13) also allows a party's conduct to be taken in account when determining costs:

If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

It's fairly rare for costs to awarded right away for family law applications. If the court believes that the applicant is acting in good faith and has reasonably brought his or her application, the court will usually say nothing about costs, leave it to the trial judge to make a decision about costs, or say that the person who is ultimately most successful when the court action is determined will have his or her costs of the application (called "costs in the cause"). Where the applicant has obviously been unreasonable or brought his or her application in bad faith, however, the court may order that:

1. the application respondent have his or her costs of the application no matter what happens with the trial (called "costs in any event of the cause");
2. the application respondent have his or her costs of the application payable right away; or,
3. the applicant pay a fixed amount as costs to the application respondent right away (called "lump-sum costs").

Lump-sum costs are the most punitive because they require the money to be paid right away, not when the trial has come to an end. At the other end of the spectrum are awards of costs in the cause, which are hardly punitive at all.

When it comes to dealing with someone who's application prone and unreasonable, you need to start keeping a list of the dates you've been in court and orders the other side was asking for.

• Assuming you're successful, you need to start asking for your costs of each application in any event of the cause.
• When it's your second or third application on more or less the same subject, you need to start complaining about how often the other side has dragged you into court and ask for your costs of each application payable right away.
• When you can prove that the other side is acting in bad faith or intentionally wasting your time, you need to ask for your costs of the application in a fixed lump-sum payable right away.

If the court has made a lump-sum costs award that the other side hasn't paid, you can raise the outstanding costs order as an initial objection to any further applications.

Ask the judge to seize him- or herself of the case

When a judge "seizes" him- or herself of a case, it means that the judge will be the only judge to hear all future applications until the case goes to trial or the judge has finally had enough. (Judges who seize themselves of applications like this usually won't hear the trial of the action.) This can be very handy because it means that the judge will learn all about the other side's issues in fairly short order, and hopefully get a bit jaded about the urgency of every new application. Otherwise, particularly in larger centres like Vancouver, Victoria and New Westminster, there's a good chance that each application will be heard by a new judge, giving the other side a change to make his or her pitch afresh.

Many judges are understandably reluctant to seize themselves of applications like this. It can be very difficult and very time consuming, and often require the judge to make him- or herself available to hear an application on short notice or while engaged in something else like a trial. When a judge will seize him- or herself of a file, however, it's an absolutely wonderful thing.

When it comes to dealing with someone who's application prone and it's clear that there's no end in sight to the number of applications you're going to have to deal with, you need to start asking the judges who are hearing the other side's applications if they will consider seizing themselves of further applications brought in the action. Although you should expect to be turned down, if you don't ask it'll never happen.

Ask for an order that permission be obtained for further applications

Finally, s. 18 of the Supreme Court Act says this:

If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

In other word, if you can show that the other side has persistently brought unreasonable applications against you, you may be able to ask the court for an order that he or she not bring any further applications without first getting permission from a judge. Similar orders may be made by case management judges or the judge hearing a Judicial Case Conference.

This really is a heavy hammer, and the court won't make an order like this unless it is clear that someone really is behaving unreasonably and capriciously. Don't expect the court to make this sort of order lightly, and don't ask for it without getting advise from a lawyer first. The last thing you want is to come across as over-the-top as the other party!

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Managed Financial Disclosure Service Launched

I've spent the last few days at the Federation of Law Societies of Canada's fantastic national Family Law Program where I learned of a nifty new service designed to facilitate document disclosure where child support is paid.

In Ontario, I understand, recent legislative amendments have made the annual disclosure of certain financial documents — tax returns, notice of assessment, pay stubs and so forth — mandatory where there is an order for child support. (The point of this is to give everyone the information they need to keep the amount of child support up to date, as well as the parties' shares of the children's special expenses.) This same obligation exists in British Columbia and all other provinces as a result of s. 21 of the Child Support Guidelines, which gives the recipient of support, and sometimes the payor, the right to demand the production of certain documents not more than once per year, but the obligation only arises when the demand is made unless an order or agreement makes annual disclosure mandatory. (The agreements I draft normally include an automatic disclosure provision to protect both parties against arrears building up.)

Given the new regulatory climate in Ontario, the new service, Support Information eXchange, run by Ontario lawyer Michael Marra and found at www.yoursix.ca, makes a certain amount of sense. As understand it, the service acts as an online repository where the parties can post and print their financial documents over the life of the child support order. The service will send an alert by email when new documents are posted and keeps a record of when the documents were posted. The cost is $50 per year.

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Alberta Associate Chief Justice Releases Dissertation on Maverick Litigants

Associate Chief Justice Rooke of the Alberta Court of Queen's Bench has just published his decision in Meads v. Meads. This decision is remarkable and should be, I suggest, required reading for judges, lawyers, court administrators and court clerks across the country.

The judgment in Meads is a treatise, a manifesto and a cri de coeur addressing a certain sort of disaffected, maverick litigant which has been clogging up Canada's courts with contrived, pseudolegal arguments and irrational, histrionic demands for a number of years. Mr. Justice Rooke's judgment identifies, analyses and deconstructs the arguments of vexatious litigants variously known as Detaxers, Freemen or Freemen-on-the-Land, Sovereign Men or Sovereign Citizens, members of the Church of the Ecumenical Redemption International and Moorish Law adherents, and makes recommendations as to how the court should manage such litigants.

The common theme among these groups of litigants, who Mr. Justice Rooke collectively refers to as "Organized Pseudolegal Commercial Argument litigants," is that they believe themselves to be privy to some secret legal principles which allow them to evade the normal rules and regulations that bind every other member of civil society. These people — and I have encountered them in my practice — drape themselves in cobbled-together pseudolegal verbiage and concepts, such as describing themselves as "corporate entities" or "juristic persons," claiming copyright over their own names and spelling their names with add-on hyphens and colons (the husband in the case before Mr. Justice Rooke, for example, referred to himself as "::Dennis-Larry:Meads::"), and filing bogus pseudolegal documents festooned with gibberish and meaningless symbols, such as thumbprints, multicoloured ink, pompous phrases set in capital letters, stamps and references to inapplicable, foreign or repealed statutes. Mr. Justice Rooke describes a number of improbable hypotheses common to these litigants, including:

1. that the Canada Revenue Agency has tricked persons into believing there is an obligation to pay tax;
2. that various deficiencies in judicial oaths prohibit court action;
3. that the relationship between the state and a person is a contract which one can opt out of;
4. that legislation, the common-law, and court principles and procedures are trumped by divinely ordained rules and principles;
5. that taxes and civil liabilities only attach to a “corporate name” and not physical persons;
6. that the courts have no power over litigants until they surrender to the courts; 
7. that state actors require the consent of persons, any state activity without consent is oppression; and,
8. that public notaries possess a judge-like authority that displaces the authority of Canadian courts.

After an exhaustive review of the many cases across Canada dealing with these and other favourite arguments, Mr. Justice Rooke concludes that the theories of Organized Pseudolegal Commercial Argument litigants have never gained purchase in a Canadian court.

Mr. Justice Rooke goes on to point out certain common linguistic, documentary, analytic and behavioural hallmarks of these litigants, and suggests a number of procedural devices that can be employed by the courts to manage and curb their excesses.

Court Staff:

1. Reject documents and materials that do not conform to established standards.
2. Mark non-compliant materials as "received" rather than "filed."
3. Forward potentially non-compliant materials to a judicial officer for review before filing.

The Judiciary:

1. Strike actions, applications and defences that are frivolous or vexatious.
2. Award punitive damages where the litigant's conduct is high-handed, abusive or oppressive.
3. Award elevated costs in favour of opposing parties to off-set their increases legal expenses resulting from the litigant's conduct.
4. Make orders that the litigant post security for costs at an early stage of the litigation.
5. Adopt tight approach to case management and assign a single judge to manage the case through to trial.
6. Consider whether the character and nature of the litigation warrants a finding that the litigant is frivolous and vexatious and should be barred from commencing further proceedings without leave.
7. Restrict who may appear as a representative or agent of the litigant.

It isn't particularly difficult to extrapolate from these comments principles of use to lawyers and self-represented parties dealing with such litigants. May I suggest:

Lawyers:

1. Apply to the chief justice for an order appointing a case management judge early on.
2. Consider whether the litigant's claim or defence discloses a legitimate cause of action or defence and apply to strike if it does not.
3. Do not waste your client's money replying to nonsensical pleading or applications in the same voluminous manner as the litigant's material, consider applying for directions.
4. Consider applying for security for costs, bearing in mind the generally high threshold that must be reached before such orders will be made. Search for other reported cases involving the same litigant.
5. Carefully scrutinize the background and motivations of persons seeking approval to appear as a representative or agent, and object where the person is going to exacerbate the situation.

Finally, the concluding remarks of Mr. Justice Rooke deserve repetition:

[71] Dealing with an OPCA litigant is difficult and frustrating. The fact that they are almost always self-represented adds to the challenge. What is worse is if a [OPCA proselytizer] is directly involved. I anticipate most judges will not tolerate representation by these persons ... particularly if the judge understands the nature of the [proselytizer] and his activities. ... 

[72] Timely and cost-effective resolution of these disputes requires that an action be pared down to its legitimate substance. That can be achieved by applications to strike irrelevant submissions and pleadings, and to categorize materials as irrelevant except for the purpose of costs, vexatious litigation and litigant status, and contempt and criminal sanction.

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Supreme Court Releases Decision on the Naming of Children

On Friday, the Supreme Court released its decision in Landa-McAuliffe v. Boland which addresses, among other things, the factors the court should take into account when being asked to name a child. The factual background behind this aspect of the case is neatly summarized by the court itself:

[14] Briefly, Ms. Boland changed [the child's] name from “____ ____ ____ Landa” to “____ ____ ____ Boland Landa” in order to include her own surname. She appears to have sought this change under s. 4 of the Name Act, R.S.B.C. 1996, c. 328. That section normally requires consent, although there is provision to waive consent under section 4(6) due to exceptional circumstances. 

[15] Mr. Landa wants a hyphenated surname “Landa-Boland” with his name first. Ms. Boland wants the surname “Boland-Landa” with her name first. Ms. Boland is the primary caregiver of the child.

Yes, people really do go to court with problems like this.

In analyzing the father's request, the court firstly concludes that it has parens patriae jurisdiction to make decisions about the naming of children. Parens patriae means "parent of the country" and refers to the supreme court's inherent jurisdiction to make decisions respecting people under a legal disability, although the phrase is most commonly used in reference to children.

Next, the court references the considerations set out in a 1985 case from Alberta, Wintemute v. O’Sullivan, to be taken into account when the court is asked to make decisions about naming children:

1. the welfare of the child;
2. the short and long term effects of a change in the child’s surname;
3. any embarrassment the child might suffer if the surname is different from that of the custodial parent;
4. the potential for confusion of identity;
5. the effect of change of name on the child; and,
6. the effect of frequent or random changes of name.

The court then cites a 2010 decision from New Brunswick, L.M.D. v. J.R.S., which addressed the issue of hyphenated surnames:

[35] ... including the name of both parents is consistent with a child’s best interests. This is not a random change of name. Nor is it a request without a purpose. In the absence of any evidence to suggest that [the child's] existing surname – the name of only one parent – is in his best interest or otherwise preferable in the circumstances, a surname that includes the names of both parents cannot be rejected simply on the basis that the status quo should prevail. Not only is there no reason why the name should not change but also, in the circumstances of [the child], given his young age (he was still three when the initial application was filed) and close relationship with both parents, he will benefit from a name that reflects his connection to two separate families.

Finally, the court takes some guidance from s. 4.1 of the Vital Statistics Act, the provincial law that deals with, among other things, the registration and naming of newborn children. Section 4.1 deals with declarations of parentage, and subsection (2) provides that when the court is also making an order about the child's name, the court must choose either:

1. the surname of either parent; or,
2. a surname consisting of both parents' surnames hyphenated or combined in alphabetical order.

The court then, quite sensibly, concludes that the child should have the hyphenated surname Boland-Landa, for these reasons:

[19] I do not consider there to be any factors, singly or collectively, preponderantly favouring that either parents name go first in the present case. ... 

[21] ... the parties seem to be in agreement, a hyphenated last name would promote the child and his collaterals indentifying with both parents. 

[22] In choosing the order of the last names here as “Boland-Landa” on the basis of alphabetization, the decision would be consistent with provincial legislation and does not favour either parent. It is a neutral choice. 

[23] The name also has the advantage of being least disruptive to the child, as it is essentially the same name that the child has borne for the past several years. In my opinion the order of the last names alphabetically hyphenated promotes [the child's] best interests.

For those of you who are curious, the general rules for the naming of children by parents are set out at s. 4 of the Vital Statistics Act:

1. if only one parent registers the birth, the child's surname is the name chosen by that parent, which could be any name;
2. if two parents register the birth, the surname is whatever name they agree on;
3. if the parents cannot agree on the name, the surname must be either the parents' surname if they have the same surname, or, if they have different surnames, the parents' surnames either combined or hyphenated in alphabetical order; and,
4. a hyphenated surname must not consist of more than two names, even if one of the parents has a hyphenated surname.

The chief executive office of the Vital Statistics Agency retains discretion about the registration of names under s. 9 of the act, and may refuse to register a name if the name that a parent wishes to give to a child:

1. might cause mistake or confusion,
2. might cause embarrassment to the child;
3. is sought for an improper purpose; or,
4. "is, on any other ground, objectionable."

That last factor is pretty broad. I'm not sure that Harper Seven, Blue Ivy Carter, Zuma Nesta Rock, Dweezil or Moon Unit would have made it through in British Columbia.

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