In a family law case that was described as a clear example of the need for judicial economy and consistency, which  invoked the integrity of the administration of justice, the court acceded to the claimant wife’s application to declare findings of fact in previous litigation between the same parties unassailable in their subsequent matrimonial litigation. This family law case, KS v. JTP 2022 BCSC 1727 included the matter of whether the children’s mother ought to be able to relocate with the children to Germany, her original home. 

 In an earlier 16-day civil trial where the wife, KS, received a damage award of almost $800,000 and special costs for multiple instances of domestic violence, the family court judge ruled that it would be an abuse of process to allow the husband to challenge the factual findings made by the civil trial judge in three separate hearings, described as the “Adjournment Decision, the “Merits Decision”, and the “Costs Decision”, despite his pending appeals of two of these orders. 

In the family litigation the parties had engaged in at least fourteen contested interlocutory applications wherein the husband had filed 29 affidavits and the wife filed 16.  The findings of fact from the civil trial included egregious incidents of spousal abuse, some in the presence of the children, leading to injuries to the wife that included a concussion, a mild traumatic brain injury, and significant psychological injuries which were the result of malicious, humiliating and oppressive behavior on the husband’s part. 

 The court also referred to the husband’s attempts to remove the wife’s civil counsel before the trial by alleging a conflict of interest. When that was not successful he reported the wife’s lawyer to the Law Society in a complaint that was summarily dismissed. 

 The civil court judge found that the husband’s testimony was not credible, but family trial judge Madam Justice MacNaughton determined that she would make her own findings with regards to the credibility of the parties and that credibility findings in earlier  litigation was only one consideration. 

She then reviewed the doctrine of issue estoppel highlighting the three necessary conditions, noting that the law was inconsistent with respect to the “finality” of a decision under appeal:

1)     that the same question has been decided;

2)     that the judicial decision which is said to create the estoppel was final; and,

3)     that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

However, Justice McNaughton decided she did not need to consider the finality issue as she determined that it was more appropriate to view this case under the abuse of process doctrine. 

Relying on Gonzalez v. Gonzalez 2016 BCCA 376 she affirmed that abuse of process engages the court’s inherent power to prevent the misuse of its procedure in a way that would be unfair to a party, or bring the administration of justice into disrepute. 

She also noted that the abuse of process doctrine is more flexible, precluding re-litigation where one or more of the requirements of issue estoppel were not met and stating that in the doctrine of abuse of process the principles of judicial economy, consistency, and finality were significant, and that proportionality and accessibility are important in family law, citing section 199 of the Family Law Act:

(1) A court must ensure that a proceeding under this Act is conducted

(a) with as little delay and formality as possible, and

(b) in a manner that strives to

(i) minimize conflict between and if appropriate, promote cooperation by, the parties, and

(ii) protect children and parties from family violence.

MacNaughton J. found that relitigating issues that were determined after a lengthy civil trial did not further the children’s interests and that JTP could cross-examine KS, make submissions, and lead evidence about any of the factors concerning the best interests of the children since the release of the Merits Decision, but could not challenge the civil judge’s factual findings regarding the assault, which he plead guilty to in criminal court. 

Typical of high conflict family cases, the facts also revealed that JTP had three different counsel throughout the family litigation and frequently was self-represented; that he stopped paying child support and the children’s counselling expenses a year before the commencement of the family trial;  that the parties had expended hundreds of thousands of dollars in litigation costs; and that JTP sought multiple adjournments of the family trial, receiving two adjournments with the last adjournment specifying that the new trial date was peremptory on him. That did not stop him from seeking a further adjournment of the trial before Justice MacNaughton, which was denied.

A clear case of “scorched-earth” litigation that despite the best efforts of a phalanx of judicial officers was nigh impossible to prevent, to the detriment of the children and a heavy burden on scarce judicial resources. 

This article was first published by The Lawyer’s Daily, a publication of LexisNexis Canada.

Lawdiva aka Georgialee Lang