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Old 07-27-2012, 03:35 PM
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Default Vexatious, bad faith, abuse of process, unreasonable

Please,

I am seeking any direction, advice or information regarding unreasonable and vexatious litigants who have acted in bad faith and have demonstrated an abuse of process.

Specifically, I am investigating the possibility and the process of making a motion without notice to demonstrate to the court that any or all of the above are applicable to my STBX. I then hope to be granted an uncontested hearing. It is my understanding that this may be next to impossible; especially when custody and access is an issue; but I believe I have considerable evidence/examples to support my belief.

Basically, I am wondering what specifics the court will be looking for me to provide? And what legislation on which I can rely?

I have found the Uniform Prevention of Abuse of Process Act. Is this applicable?

I have read s. 140 of the Courts of Justice Act which deals with vexatious litigants. Is this applicable?

Does anyone know of relevant case law?


Thank you!
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Old 07-27-2012, 03:38 PM
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Quote:
I am investigating the possibility and the process of making a motion without notice
Step 1 - be able to show that you have a good reason to not be providing notice.

Can you explain here why you do not want to provide your soon to be ex notice of the motion? It is difficult to help you with presenting an argument without details.

Generally, someone who is a vexatious litigant has been making numerous motions or otherwise attempted to drive up your costs. This would not normally justify making a motion without notice.
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Old 07-27-2012, 03:48 PM
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Quote:
Originally Posted by OrleansLawyer View Post
Step 1 - be able to show that you have a good reason to not be providing notice.

Can you explain here why you do not want to provide your soon to be ex notice of the motion? It is difficult to help you with presenting an argument without details.

Generally, someone who is a vexatious litigant has been making numerous motions or otherwise attempted to drive up your costs. This would not normally justify making a motion without notice.
and... conducting themselves in this manner:

L.W. v. A.W., 2012 ONSC 3042 (CanLII)
Date: 2012-05-24
Docket: FS-10-364255
URL: CanLII - 2012 ONSC 3042 (CanLII)
Citation: L.W. v. A.W., 2012 ONSC 3042 (CanLII)
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Old 07-27-2012, 03:59 PM
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Originally Posted by FamilyBlah View Post
I am seeking any direction, advice or information regarding unreasonable and vexatious litigants who have acted in bad faith and have demonstrated an abuse of process.
You need to have a "motions frenzy" served on you. For example in the above posted case law the highly conflicted litigant filed 12 motions in 12 months. There isn't any set formula for defining it but, generally, it takes a regular dragging of one into court.

Quote:
Originally Posted by FamilyBlah View Post
Specifically, I am investigating the possibility and the process of making a motion without notice to demonstrate to the court that any or all of the above are applicable to my STBX.
Now, I have a strong opinion of "emergency" ex-parte motions and their use in Family Law. Some here in particular know my strong opinion on when and why they should be used.

1. If children and parent are in danger of abuse and/or neglect and/or maltreatment.
2. If children are going to be removed from their habitual residence and/or abducted.
3. If children go missing and there is no contact from the other parent.

Quote:
Originally Posted by FamilyBlah View Post
I then hope to be granted an uncontested hearing.
Re-think your strategy potentially. Everyone has a right to a proper defence and how would you get an "uncontested hearing". Emergency ex-parte motions are returnable and the other party will be given the opportunity to respond.

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Originally Posted by FamilyBlah View Post
It is my understanding that this may be next to impossible; especially when custody and access is an issue; but I believe I have considerable evidence/examples to support my belief.
"examples" do not make evidence but "hearsay".
"beliefs" are grounded in emotions and may be based on your own "emotional reasoning" and not cogent and relevant evidence.

Quote:
Originally Posted by FamilyBlah View Post
Basically, I am wondering what specifics the court will be looking for me to provide? And what legislation on which I can rely?
The burden of proof will lie with you as the party filing the emergency ex-parte motion. Be forewarned that Judges do not take kindly to these kinds of tactics. You could face losing custody and access to the children involved.

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Originally Posted by FamilyBlah View Post
I have found the Uniform Prevention of Abuse of Process Act. Is this applicable?
Not as an emergency in my opinion. If you are getting served 12 motions in 12 months... A judge as provided in the above case law will deal with the issue.

Quote:
Originally Posted by FamilyBlah View Post
I have read s. 140 of the Courts of Justice Act which deals with vexatious litigants. Is this applicable?
That is how they determine what constitutes a "vexatious litigant" I believe.

Quote:
Originally Posted by FamilyBlah View Post
Does anyone know of relevant case law?
See above.

I highly recommend you really consider bringing forward an "emergency" ex-party motion. You are asking a judge to forgo the respondents rights under the law to defence. This is a VERY big thing to ask.

Good Luck!
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Old 07-27-2012, 04:10 PM
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I am in the middle of something which might be similar. My ex takes me to court a few times a year trying to get SS overturned. My lawyer started a counter claim last fall for vexatious litigation. The judge heard the arguments and my lawyer was successful. My ex was merely trying to push up my legal bill and his various motions were nonsense.
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Old 07-27-2012, 04:18 PM
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I agree with Orleans Lawyer - why would you not provide your stbx with notice of motion? Aren't you, by not providing this NOM, acting in bad faith yourself? Just curious.
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Old 07-27-2012, 05:09 PM
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Quote:
Originally Posted by OrleansLawyer View Post
Step 1 - be able to show that you have a good reason to not be providing notice.

Can you explain here why you do not want to provide your soon to be ex notice of the motion? It is difficult to help you with presenting an argument without details.

Generally, someone who is a vexatious litigant has been making numerous motions or otherwise attempted to drive up your costs. This would not normally justify making a motion without notice.
I am not sure what would constitute a good reason, but hopefully a discussion will flesh that out and help determine whether or not I may have good reason.

Here are some facts off the top of my head. I am not sure of the relevancy of the facts presented.

In no particular order:
1. My STBX has made false allegations of spousal abuse against me.

2. My STBX has made false allegations of child abuse against me:

3. My STBX removed the children from their home without my consent.

4. My STBX has filed only one Financial Statement in this case. That Financial Statement was filed as part of the Application in SEPT 2009. That FS indicated an income of $0.00. That FS also indicated that the information was expected to change. That FS did not include the required documentation. It only included the 2nd page of her 2008 NOA.

5. At a Case Conference in OCT 2009 I was ordered to pay child support for my children based on my salary of approximately $40,000 and my STBX's income of $0.00. I was also ordered to file a Financial Statement with required tax info within 15 days.

6. As ordered, I did file a FS within 15 days.

7. I was unable to provide my tax info because my 2008 and 2009 taxes had not yet been completed. I required certain info from my STBX.

8. I requested the required tax info from my STBX on numerous occasions. I was not provided with the tax info until late 2010/early 2011.

9. My STBX returned to work a couple of months after the Case Conference in OCT 2009. She did not inform me of this nor did she update her FS.

10. I forgot to file an answer. (BTW, it would be very helpful for Judges to order this instead of just including it in the Endorsement preamble)

11. My STBX attended a hearing in SEPT 2010 that was attended by my employer. I was not notified of this hearing.

12. My STBX claimed I had not filed a FS or required tax info in accordance with the OCT 2009 order.

13. As of SEPT 2010, my STBX still had not provided me with the tax info I required.

14. At the SEPT 2010 hearing my employer was ordered "to provide any documentation as it relates to the Respondent's employment, income, benefits and pension to the Applicant."

15. At the SEPT 2010 hearing it was also ordered that I had failed to file an Answer and was therefore not entitled to any further notice of steps in the case.

16. I was wrongfully dismissed from my job in OCT 2010 and filed a grievance.

17. The OCT 2009 endorsement was not drafted into an Order until April 2012. When it was drafted it now included two extra paragraphs...one being the standard FRO clause included with Support Orders and the other being that the parties are to exchange financial information within 30 days of the 1-year anniversary.

18. In OCT 2010 my STBX emailed me stating "pursuant to the OCT 2009 court order I was required to provide her with my current income and current employment." I informed my STBX that my current employment and current income were both "none".

19. 13 days after acquiring the information in [18] above, my STBX had another uncontested hearing and stated in her affidavit that to the best of her knowledge my salary was the same as it was in 2009.

20. My STBX did not provide me with her financial information in accordance with [17] above.

21. My STBX filed the support order with FRO claiming that arrears were accumulating since OCT 2010.

22. My STBX obtained another uncontested hearing in OCT 2011. I found out about this one and attended.

23. An Order from this OCT 2011 hearing terminated the OCT 2009 support order. It also stated that the "status quo shall continue as is" and that my STBX "shall continue as primary". I was not permitted to defend these claims.

24. The order from OCT 2011 also ordered me to pay $2500 in costs in order to file an Answer.

25. At the OCT 2011 uncontested hearing my STBX argued that any money received from my severance settlement should be paid to the Applicant to pay off arrears. We discussed in length the difference between "severance" and "grievance".

26. I received an "amended" draft order where the word "grievance" had been changed to "severance". I filed a Form 25: Notice Disputing Order.

27. My STBX obtained another order at another uncontested hearing in DEC 2010 after the uncontested hearing mentioned in [14] in which I was ordered to provide information that I was either still unable to provide (tax info) or info that the previous order had allowed them to obtain directly from my employer.

28. Paragraph 1 of the SEPT 2010 order that stated I had failed to obey the OCT 2009 Order has subsequently been scratched out.

29. Some of the Orders in the continuing record have multiple versions.

30. My STBX has not responded to any requests for informal meetings, mediation, arbitration or collaborative law.

31. In some of the motions mentioned above, my STBX indicated that the judge should read her Financial Statement from OCT 2009...the only FS on record.

32. In MAR 2012 I sent my STBX a letter referencing Rule 19 and requested an Affidavit of Documents and full financial disclosure. I received a letter in early APR 2012 that the information would be provided forthwith. I have yet to receive the info.

33. My STBX also filed a Contempt of Motion against me for not providing the info requested in the order from DEC 2010 [26].

34. The order from DEC 2010 was made at an uncontested hearing made without motion and was served upon me on JAN 6, 2011. The order states that I am to provide certain info no later than JAN 10, 2010!

35. The Affidavit of Service from [34] seems fishy to me. it is two pages long and the pages are not from the same form. Page 1 is from the new and current Form 6B. Page 2 is from a different Form 6B...it repeats the current paragraph 4 at the top of the page and then has the new paragraph 10 (I am 18 or older) added. Page 1 indicates the documents i was served on JAN 6, 2011 [34] and is not signed. Page 2 is signed but who knows when it was signed.

36. My STBX's affidavits are filled with vexatious and unsubstantiated claims against me. She has no evidence.

37. My STBX amended her Application with permission from the court obtained at the OCT 2011 uncontested hearing. She did not include a Form 35.1 with her amended application.

38. In NOV 2011 my STBX obtained a letter from my (now) former employer stating that I did not receive a severance package when I was terminated in OCT 2010 but that I was now choosing to receive a severance as a result of the negotiations.

39. My former employer is no stranger to grievance settlements and I believe intentionally used the incorrect term "severance".

40. I signed the grievance of settlement minutes in OCT 2011 with the understanding that my former employer would also be signing immediately. I was informed that my former employer had agreed to issue the cheque immediately.

41. My former employer intentionally delayed and did not issue the cheque until the last allowable day.

42. Before [41] my STBX brought a motion to have the money (or part of it) I obtained in the grievance settlement paid to her for arrears she claimed had accumulated.

43. As part of the requirement in the minutes of settlement for the grievance I was required to sign a letter of resignation predated to OCT 2010. This is stated directly in the minutes. My STBX has attempted to claim I intentionally lowered my income to have my income imputed. NOTE: This was only done in the Settlement Conference brief.

44. My STBX has made no Offer to Settle other than the one included with her Settlement Conference brief. NOTE: I do not consider this an offer to settle as it was exactly what they have been asking for.

45. As a result of [42] $2500 of the money received from the grievance settlement were placed in trust and remain there to date.



That is just off the top of my head. There is certainly more.

It seems my STBX has had ample opportunity to present whatever case they may have.
She has failed to provide financial disclosure.
She has made unnecessary and numerous motions.
She has mislead the court.
She has lied on affidavits.
She has provided no evidence in support of her repeated character-attacking accusations.
She has manipulated the status quo, made unilateral decisions, abducted the children, spread false accusations about abuse about me. She has even made mention of the alleged abuse in the registration forms at my children's daycare.
She has alienated me from people in my former line of work.
She has alienated me from people at the daycare.
I believe she is alienating the children from me.
She has lied and manipulated from day one and I have proof.
I am off work due to stress and the toll it has taken on me including whatever affect it has had on my ADD.
My STBX has a current income of approximately $40,000 and I do not have an income currently.
My STBX has refused to pay child support. She has refused to release the money held in trust to help me with expenses.


Sorry for the rambling, but believe it or not there is still more!

Does any of that speak to any of the topics of the title of this thread?
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Old 07-27-2012, 05:37 PM
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Quote:
Originally Posted by arabian View Post
I agree with Orleans Lawyer - why would you not provide your stbx with notice of motion? Aren't you, by not providing this NOM, acting in bad faith yourself? Just curious.
My concern with providing notice is that my STBX will either cross-motion or introduce the same (or more) irrelevant arguments in an attempt to further confuse an already confusing case which will result in the judge just throwing out the motion until evidence can be presented at a trial in December.

It is my understanding that the Continuing Record is not part of the trial. Much of the STBX's behaviour is indicated by the CR.
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Old 07-27-2012, 05:48 PM
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First of all I would say I'm sorry that your life has been so unpleasant. I know that it is extremely frustrating to try to play by the rules when the ex simply does not cooperate. Your question: Does any of that speak to any of the topics of the title of this thread?" My answer to you would be no to most, if not all, of the items.

1. False accusations are an unfortunate reality of family court.
2. People not following court orders are an unfortunate reality of family court.
3. Bad feelings, alienation of former spouse to neighbors, friends, employers is pretty common in family court. If you have big bucks to start a defamation of character, and can factually prove financial loss, you can probably find a lawyer to pursue it for you. However, be prepared to pay a minimum of 5,000.00 retainer.

By your own admission you failed to file your income tax returns because you were waiting for information. That is not a valid excuse. You can file your return and when you get your information at a later date you then file an amendment.

I find it very concerning, however, that you state you were not informed of many court hearings. You say things pretty much went on ahead without you.

If you have court orders where your ex is supposed to provide information and she didn't comply, you can file a motion for contempt of court and ask the judge for sanctions against your ex for her failure to comply.

Are you self-represented?
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Old 07-27-2012, 06:11 PM
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Quote:
Originally Posted by arabian View Post
First of all I would say I'm sorry that your life has been so unpleasant. I know that it is extremely frustrating to try to play by the rules when the ex simply does not cooperate. Your question: Does any of that speak to any of the topics of the title of this thread?" My answer to you would be no to most, if not all, of the items.

1. False accusations are an unfortunate reality of family court.
2. People not following court orders are an unfortunate reality of family court.
3. Bad feelings, alienation of former spouse to neighbors, friends, employers is pretty common in family court. If you have big bucks to start a defamation of character, and can factually prove financial loss, you can probably find a lawyer to pursue it for you. However, be prepared to pay a minimum of 5,000.00 retainer.

By your own admission you failed to file your income tax returns because you were waiting for information. That is not a valid excuse. You can file your return and when you get your information at a later date you then file an amendment.

I find it very concerning, however, that you state you were not informed of many court hearings. You say things pretty much went on ahead without you.

If you have court orders where your ex is supposed to provide information and she didn't comply, you can file a motion for contempt of court and ask the judge for sanctions against your ex for her failure to comply.

Are you self-represented?

Yes, I am self-represented.

I am curious how my STBX was able to get the first hearing without notice to me...and then at that hearing was granted an uncontested hearing.

Also, thank you! Especially for recognizing what I have been through thus far. I no longer question how others have resorted to suicide.

Last edited by FamilyBlah; 07-27-2012 at 06:12 PM. Reason: Thanks
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