The Vexatious Litigant in Family Court

Vexatious Litigant Defined

In the Family Court system, a vexatious litigant is defined as someone who engages in relentless or harassing litigation, often against various parties within the same matter, notwithstanding the outcome of prior litigation. A vexatious litigant does not have to be representing themselves for the court to make such a declaration, but there are several criteria that family courts look for, including: having recently commenced litigation that is without merit or with limited legal argument, harassment or abuse of court process against various parties, bringing forth evidence or allegations that are well within the knowledge and power of the litigant to produce, or turning to the courts to address need for dispute resolution services when such has already been ordered and provided for purposes in previous orders . The Family Courts are careful when it comes to making the legal determination of whether a litigant is vexatious or not – especially where there is an emotional upheaval following the dissolution of a marriage, or where there is also a history of family violence that may explain troubling behavior that can otherwise be seen as having the hallmarks of being vexatious.

Identifying Vexatious Litigation in Family Court

One of the primary characteristics of a vexatious litigant is repeated filing of frivolous motions or petitions. In family court, there can be motions and petitions that come up repeatedly. A common example is a violation of child support. Another common example is the repeated filing of motions for modification of custody and or parenting time. While it is critical to understand that there is no limit on the filing of motions to modify, attempting to file a motion within a short period after an earlier failed motion could be seen as vexatious behavior. Each situation will be different on a case by case basis. Adding to this situation are clients that continue to file motions to remove the other party from the parenting time schedule, such as restricting overnight parenting time, especially when those motions are based on speculation about criminal activity or substance abuse. While never conclusive, repeated conduct in filing motions of this type is often seen as vexatious litigation and can lead to sanctions or an order requiring approval prior to filing for certain motions.

Legal Ramifications of Vexatious Litigants

Recognizing the Legal Consequences for Vexatious Litigants
The Florida Rules of Civil Procedure and Family Law do not contain express definitions for a "vexatious litigant" other than relying on the common law definition. However, the Florida Statutes do provide one definition:
"Vexatious, for purposes of this chapter, means without reasonable or probable cause."
Florida Statute 68.093 (1)(b)(2). The procedure to have someone de-designated as a vexatious litigant or declare that a person has acted as a vexatious litigant is set forth in Florida Statute 68.093.
Sanctions for the Vexatious Litigant.
The sanction a court can impose for a vexatious litigant are:
Courts can limit the access that vexatious litigants can have to courts by restricting or prohibiting the vexatious litigant from filing any new pro se actions without prior leave of Court. For example:
That leaves the vexatious litigant having to pay a lawyer to write a pleading (which costs money) or seek prior leave of court (which takes time and money).

How to Protect Against the Vexatious Litigant

When targeted by a vexatious litigant, there are strategies and legal remedies available to individuals who have been wronged in the Family Court system.
One option is to seek a vexatious litigant court order against the litigant. The order will bar the litigant from commencing vexatious litigation where a judge can certify to the assessment of whether the litigant is vexatious. In doing so, the judge must: Generally, a vexatious litigant court order must be made by consent or after giving the vexation litigant an opportunity to be heard (unless a copy has previously been served). Exceptions to this are as follows: Where a vexatious litigant court order is made without notice , the respondent must be given the opportunity to be heard no later than the next court date after the order is made and no more than 30 days after the order is made.
Without prior leave (permission) of the court, the litigant can be restrained from commencing person action(s) or proceeding(s), including: All documents and forms in a lawsuit will be scanned and uploaded to a digital courtroom. This permits court staff to scan and index a document as soon it is filed, thus capturing the date filed in the civil listing. As such, documents will be available online at no cost, 24 hours per day, seven days per week. All actions and proceedings issued in the civil listing up until 23 December 2019 are available. Further: These steps can be taken to stop harassment from a vexatious litigant in the Family Court system.

How the Courts Deal with Vexatious Litigants

In addition to the procedural and legislative tools available, courts can also identify and designate litigants as vexatious litigants. In such cases, a vexatious litigant may be prohibited from continuing with or starting new proceedings without first obtaining leave of the court. Recourse to judicial assistance only occurs after other procedural tools fail to reduce or stop the litigation behaviour. A judicial determination designating a litigant as vexatious is not made lightly, as the consequences can curtail that litigant’s ability to obtain judicial assistance. Such decisions are made only if an individual litigant meets the requirements of having "habitually, persistently, and without reasonable grounds, instituted vexatious actions or motions in the Court of Appeal, the Superior Court of Justice, or a court of similar or higher rank". The key here is the habitual, persistent and vexatious nature of the litigation behaviour. Where the history of the vexatious litigant is clearly set out and the applicant discharges the onus of proving such behaviour in a clear and convincing way, the courts will follow through with this judicial designation. As Madam Justice Swinton so succinctly put it in R. v. K.(S.) (1998), "while every vexatious litigant is potentially a vexatious litigant, not every vexatious litigant is a vexatious litigant". A litigant must be clearly a vexatious litigant to be subject to the limitations imposed by such a designation. These judicial designations can be made both in the context of child support and spousal support cases, on the basis of protracted proceedings denoting vexatious behaviour. By restricting the ability of certain litigants to avail themselves of the judicial system, the courts maintain the integrity of the system as a whole, and minimize the stigmatizing of the litigants in issue, who may not be vexatious, but whose claims are being made out to be vexatious by the other side. Certainly, before making such a designation, the judicial discretion to do so is bestowed heavily, with evidence required to be laid out before the Court.

Effects in the Family Court System

The impact that vexatious litigants have on the family court system can be dramatic and far-reaching. While many vexatious litigants are generally denied access to the court through Caution Orders preventing them from filing law suits, this does not completely eradicate the problem as vexatious litigants do still have some access to the Courts on a limited basis.
The result however, is that litigants and the Courts are suddenly faced with an unexpected and extraordinary number of motions that have no legal merit being brought forward by the litigant in abuse of process. The Court’s time spent responding to vexatious litigants, responding to unmeritorious motions before the Courts, and holding hearings and determining if there is any merit to the applications consume significant amounts of time and resources and delay their families from receiving decisions in a timely manner and "clog" the docket of the Court with voluminous matters.
Vexatious litigants have been described as "the bane of lawyers," and can be detrimental to the administration of justice. Justia’s United States Law Blog describes the "pattern of vexatious behavior" exhibited by a vexatious litigant as:
Courts are becoming inundated by baseless complaints, and even legitimate claims are difficult to resolve because of vexatious litigants spreading frivolous ones like locust or intentionally beginning unprosecuted actions in order to somehow infest the courts with these actions.
While some Courts including both Ontario and British Columbia have begun to take a serious stance considered the "vexatious" conduct to be worthy of court time, the vast majority of vexatious litigation involving families takes place in Ontario Courts.
Many judges recognize that a party who does not have a legitimate claim, but still persists in having his day in court is rarely deterred by a warning or a Court Order. Accordingly, judges will impose fines, costs, and even Jail Time! Ultimately, this never serves to deter a vexatious litigant from their conduct and it creates additional work for the courts. Many recent cases highlight the dilemma of how to manage repeated vexatious litigation conduct.
The vexatious litigant in the family law context is present when one spouse believes that they are "owed" something from the other spouse . Commonly, a spouse feels entitled to pursue spousal support "for life" for a variety of reasons including:
The fact that support is only payable so long as the recipient has a need, coupled with the reality that employment of the recipient may reduce or eliminate that need for support, renders the issue of support a fruitful area for a vexatious litigant to pursue.
Parenting time can also be subject to vexatious litigation. Vexatious litigants commonly will use the issue when there is a perceived "wrong" from a separation or divorce, or the issue of child custody has yet to be resolved. Shifting the children out of the primary residence and altering responsibilities regarding parenting time can appear to be a method to "punish" the other parent for an action taken that was deemed unacceptable. Even the disclosure of certain events, rather than waiting for those events to be fully documented in motion materials, may be used as a tactic to prolong litigation.
Residential relocation also presents an opportunity for vexatious conduct to occur. If a spouse desires to move residentially to further a business or educational opportunity, a former spouse may use this goal as a source of contention and strain the issue of where the children shall reside. Many times, the vexatious conduct is not intended to cause a significant disruption to the other parent’s life, but rather a means of ensuring some control and perhaps even a mechanism to prevent a relocation. The decision of whether a relocation is appropriate can be complex. When relocated by virtue of litigation however, vexatious litigants run a risk typically with little reward.
Not every case of a former spouse seeking changes to an order or agreement is vexatious in nature. There are some circumstances for example where a person may have experienced a change in financial circumstances and a claim for spousal support could be meritorious. The test for vexatious conduct requires that the Court determine that the type of conduct complained of is meritorious and persistent.
While there are rules in place that restrict vexatious litigants, parties nonetheless face delay and expense to have such an order granted. In order to secure the prevention of a vexatious litigant accessing the court, a party must ensure that they have all of the facts available and the relevant materials drafted into comprehensive motion materials to be presented to the Court. Only then will the court consider the application.