When a separation or divorce is difficult, sometimes people file too many applications or use the court to harm their ex-spouse or ex-partner. This can be considered abuse of the court process or judicial violence. This type of abuse is particularly draining. It affects the person subjected to the abuse, but also the children and other family members who are already affected by the separation. How can these situations be prevented? What can you do if you think you’re the victim of this kind of abuse?
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This article in short
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Abuse of the court process: separations and family conflicts
If you’re going through a separation or divorce, you can ask the courts to settle some issues. You can also go back to court, long after you separate, to do things like change your child custody arrangement or child support payments.
Separation and family conflicts can be very complex, emotional, and last for years. If your ex files many applications with the court, you may feel they’re using the court excessively or trying to prolong conflict. A court could decide this is an abuse of process or judicial violence. When this happens, courts must intervene quickly to end the abuse and limit the consequences.
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What is judicial violence? Judicial violence is an extreme form of abuse of the court process. It generally means using the court to intimidate or control another person, like an ex-spouse. It’s a term often used in the context of separation, family violence or domestic violence, but abuse of the court process in family matters is not limited to these extreme cases. |
How to recognize abuse of the court process
There’s no one way to tell if someone is abusing the court process. In family law, the court must consider factors specific to these types of situations. For example, the court will look at these things:
- all the applications the ex-couple filed with the court, not just the current application,
- the impact of filing many applications on the life of the ex-spouse and their children,
- whether there is family violence or domestic violence.
Examples of abuse of the court process in family matters:
- threatening or intimidating an ex when filing an application or in court,
- harassing an ex or their lawyer by filing too many applications or sending numerous emails, for example, filing applications to appear in court on an almost weekly basis or sending more than 1,100 emails,
- intentionally postposing a divorce judgment,
- involving the children in the conflict, for example, by trying to influence what they say in court.
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Important! A Quebec court has decided that it was not an abuse of process for one parent to file numerous applications in response to the other parent excluding them from important decisions regarding the children. |
What happens if there’s an abuse of the court process in a family matter?
In family cases, the court has a duty to do these things:
- intervene quickly to prevent abuse,
- order the person who is abusing the court to pay money, for example, ordering them to pay their ex’s legal fees.
The court can also decide to take these steps:
- refuse to hear the abusive application,
- set up measures for all future applications, for example, requiring the person who abused the court process to get the court’s permission to file an application.
A court can also order the person to pay penalties. These sums are designed to discourage abuse. They’re determined on a case-by-case basis, which means they vary a lot. In family matters, courts have ordered penalties ranging from $500 to $50,000 for abuse of the court process.
Examples of penalties
Penalty
Justification
$500
For lies and tactics meant to mislead the court.
$1,000
For dishonesty and lying under oath.
$5,000
For not paying money that the court ordered a person to pay for having abused the court process
$7,500
For an unusual “legal battle” that amounts to judicial violence
$10,000
For using the courts to harm an ex for more than four years after a divorce judgment
$50,000
For repeated abusive behaviour, unfounded accusations, lies and an exceptionally large “legal battle”
Courts must be careful when deciding whether to reject an application that could be abusive. For example, a court can’t prevent a person from filing an application that’s in the interest of their child, even if the court ends up rejecting the application at the end of the hearing.
How to prevent abuse
If you want to ensure your application is not abusive, you can consult a lawyer or a free legal resource.
Abuse of the court process affects your ex, kids and family, and it costs a lot of money for everyone involved. People who aren’t represented by a lawyer may be at a greater risk of abusing the court process. If you’re representing yourself, you have a duty to ensure your case runs smoothly.
How can you protect yourself against abuse?
If you think your ex is abusing the court process or committing judicial violence, you can take these steps:
- talk about it with your lawyer,
- talk about it with the judge if you’re representing yourself,
- consult a lawyer or free legal resource.
If you think you’re experiencing family violence or domestic violence, you can take these steps:
- contact an organization like Rebâtir for free legal advice,
- read our article on resources for people who have been the victim of a crime.