18 December 2010

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!