Legal bullying: When leaving doesn’t end the abuse

Many women who leave a relationship in which they have been abused by their partner are unpleasantly surprised to discover that the abuse follows them out of the relationship.

Post-separation abuse can take many forms:

• stalking
• online harassment and abuse
• increased use of threats
• using the children to spy on and intimidate the woman
• drawing in family members and friends

…and so on.

Legal bullying

One of the most troubling kinds of post-separation abuse is legal bullying: the intentional misuse and manipulation of family laws and family court processes by the abuser to try to maintain his power and control over his former partner by intimidating, harassing and inducing fear in her. In some cases, the strategy is intended to deplete her financial resources and convince her to accept the legal outcome he wants or, even, to return to the relationship.

There are many forms of legal bullying, ranging from passive (not retaining a lawyer, not responding to or filing documents, filing incomplete documents, missing court dates) to active (conflicting out lawyers so she can’t retain one, bringing repeated motions on meritless or already decided issues, providing dishonest financial disclosure, lying about the abuse, changing lawyers repeatedly, representing himself when he has no financial need to do so, disregarding court orders).

Needless to say, the impacts of legal bullying on the survivor can be significant. She may fear for her physical safety, become depressed or develop increased PTSD, incur legal costs she cannot afford or use up the hours on her legal aid certificate. If she is unrepresented, she may have to deal directly with the abuser as well as lose time at work because of repeated court appearances caused by his actions.

Ultimately, she may concede on important legal issues simply to end the contact with him. She may accept a parenting arrangement that is not safe for her and not in the best interests of the children, walk away from appropriate child or spousal support or decline to pursue an equalization of family property, all of which will impact her and the children for years into the future.

How a lawyer can manage legal bullying

This is why it is important for lawyers – whether acting for the bully or the bully’s victim — to understand legal bullying and know what to look for in clients where family violence is a factor.

This starts with screening for family violence, which all lawyers should do with all new clients.

When a lawyer is acting for the bully, they need to be prepared to set clear and firm limits on their role so they don’t inadvertently become the bully’s tool in his harassment of his former partner. The lawyer can attempt to coach the client in the wisdom of refraining from bullying activities, although a determined bully may not care about the legal consequences of his actions. In extreme cases, where the client’s expectations of the lawyer put them in a compromised professional and ethical position, the lawyer may need to tell the client they will no longer act for him.

If the client has identified that she is a survivor of family violence – in particular of coercive controlling abuse – the lawyer should immediately be alert to the possibility of legal bullying and be prepared to respond to it assertively.

Red flags: Know the signs

Red flags that could indicate a client is a legal bully include:

• An assumption that he should and will get the outcome he wants
• A refusal to consider any compromises
• An insistence on a parenting regime that is not reflective of pre-separation parenting responsibilities, gives him most of the power and is unrealistic
• A lack of interest in what is best for the children
• A strong focus on his needs and wants
• Indications that he is involving the children in the case
• Repeated threats to represent himself if the lawyer doesn’t do what he wants

Red flags that could indicate a client is a victim of legal bullying include:

• A self-represented party on the other side, even though he could afford a lawyer/qualify for legal aid
• Frequent texting interruptions by the former partner during appointments
• Quick client agreement to unreasonable offers from the former partner
• A lack of interest in pursuing outcomes that reflect her legal rights, especially in the areas of support and property division
• Disclosures of other forms of post-separation abuse by her partner, such as stalking and tech abuse
• Other evidence of an unequal balance of power between the two parties. For example, the victim is a newcomer and the bully a long-time Canadian; she has much less education than he has; she does not speak English, he does; she is financially dependent on him; she has a disability, he is her caregiver

None of these red flags means there is legal bullying, but they do mean the lawyer should be alert to the possibility and ready to take any necessary action.

When lawyers are aware of the dynamics of abuse that can lead to legal bullying, we can do a much better job of representing our clients. We can help them to behave appropriately; protect their safety and, ultimately, assist them in obtaining outcomes that are just.

There are resources for lawyers who are interested in learning more. The Law Society of Ontario will be offering a two-day program on managing family violence in November, and Luke’s Place offers an online course for family law lawyers.

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.