By Tanya Thakur, BC Legal Coach
Since the Family Law Act came into force, courts have been tasked with examining family violence more thoroughly. While there are many types of family violence, this blog focuses on litigation abuse as a form of family violence. Litigation abuse is a form of psychological or emotional abuse of a family member. Psychological abuse can be profoundly devastating to its victims. Studies indicate that psychological abuse can lead to multiple mental, physical, and functional limitations.
Section 1(d) of the Family Law Act states that psychological or emotional abuse includes:
- Intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property
- Unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy
- Stalking or following of the family members
- Intentional damage to property
Litigation abuse refers to the misuse of the judicial system by the perpetrator to continue patterns of coercion and control against the victim. Under section 37 and 38 of the Family Law Act, which relate to assessment of the children’s best interests, if the court finds that there is litigation abuse, it must be taken into consideration when assessing the children’s best interests.
While the definition of family violence in the Family Law Act does not specifically refer to litigation abuse, in some cases, the BC Supreme Court has recognized behaviors indicating litigation abuse as constituting family violence under its meaning in section 1 of the Family Law Act.
Some behaviors, not all of which have been recognized by the courts as family violence, that may indicate litigation abuse or misconduct include:
- Drawing out litigation/including multiple adjournments
- Changing lawyers a lot - particularly right before a hearing/trial date
- Repudiating agreements right after they are reached
- Self-represented by choice and fails to cooperate with legal requirements, such as financial disclosure
- Draining your financial resources during the proceedings by vexatiously litigating, such as bringing unnecessary application, pursuing legal claims without merit, and appealing matters without merit
- Threatening to not pay support or failing to pay child support without legal grounds of doing so
Case examples in which litigation abuse or misconduct was recognized as family violence include:
- In M.W.B v. A.R.B., 2013 BCSC 885, a mother was found to have committed family violence in part by refusing to settle orders that were drafted by lawyers, and these actions prolonged and intensified the litigation.
- In Hokhold v. Gerbrandt, 2014 BCSC 1875, the court determined that the father's emotionally abusive conduct, which included failing to pay support, and threatening to close his dental practice, constituted family violence.
- In C.R. v. A.M., 2015 BCPC 76, the court found that a father’s threats to use his stronger financial position to fight the mother “[until] she lives in a box” constituted family violence.
- In Barendregt v. Grebulinas, 2022 SCC 22, the trial judge found that the father’s conduct at trial was abusive. Most notably, the father put into evidence a nude selfie of the mother in an affidavit, which the trial judge found served no purpose but to humiliate her.
As a counter example, in J.R.E. v. 07-----8 B.C. Ltd., 2013 BCSC 2038, the court held that taking an insistent and even inflexible position in post-separation negotiations did not, in that case, equate to emotional or psychological abuse.
It is unimaginably difficult, especially when you are self-representing, to protect your rights when your ex-spouse is weaponizing the legal system against you. With the help of an understanding and knowledgeable legal coach, you can navigate and minimize litigation abuse. Book your free 20-minute consultation today with one of our knowledgeable family law legal coaches.