It’s an unpleasant truth, and I wish I could say it weren’t so. Unfortunately, I reached this conclusion a long time ago and two hearings I had in the past week provided me with further evidence.
In both hearings the other side were convicted criminals, both have used the court system over years to abuse their ex-spouse. The response of the courts to them brought to mind the saying of Rabbi Yehoshua ben Levi in the Yalkut Shimoni:
כל שהוא רחמן על אכזרים לסוף נעשה אכזר על רחמנים
Meaning, whoever is compassionate to the cruel will ultimately be cruel to the compassionate.
I’ll just note that neither of these cases were in the Jerusalem Family Court, so anyone out there who might think they recognize the personalities involved can take off their guessing caps.
In one of the cases, the other side has been relentlessly pursuing my client in court for years, with frivolous petitions and suits. Despite repeated requests on my part to dismiss the various petitions, the judge has never done so, and has consistently acquiesced to his procedural and other requests.
Last week however, the other side didn’t show up for court. The judge told me to phone him (he’s not represented), which I did and he insisted that despite the fact that I was in the courthouse and the judge had told me to call, the hearing was set for another date.
The judge broke out in a huge grin, and wrote a decision dismissing the case due to his failure to show up. Her glee was palpable.
The problem? That’s what she should have done years ago, but never had the guts to do it as long as he was in the courtroom. Let’s see how she responds if and when he files to vacate the judgement given in his absence.
I recently ran across an article in the Lawyer’s Weekly from Canada which discussed an Ontario Court decision where a judge awarded damages for mental suffering caused by the post-separation harassment by the ex-partner, a judgment in which as part of the damage caused to the woman, he was order to indemnify her for the legal expenses incurred by the ongoing suits.
Mr. Danicic has pursued a relentless campaign of harassment against the applicant,” found Justice Harvison Young. “I find that Mr. Danicic caused Ms. McLean to suffer acute anxiety, fearfulness and great distress. She continues to be fearful for herself and others, including her legal counsel and her family.”
The judge held that the three elements of the tort of intentional infliction of mental suffering were made out: Danicic engaged in (1) “flagrant and outrageous conduct” that (2) was “calculated to harm” McLean and (3) resulted in “a visible and provable illness,” as evidenced by McLean’s need for medical assistance and anti-anxiety medication.
Justice Harvison Young emphasized that the $15,000 award of “compensatory and aggravated damages for intentional infliction of mental suffering and emotional distress” (plus interest) was also intended to express “society’s outrage at this conduct.”
The judge also assessed full indemnity legal costs against Danicic of $200,000, on top of about $28,500 from previously ordered, but yet-unpaid, costs.
“It is hard to imagine a stronger case than this for the imposition of full recovery costs on the basis of bad faith,” observed Justice Harvison Young. “He embarked on a campaign of threats and intimidation designed to coerce her into abandoning her claims. At the very least, Mr. Danicic’s conduct was calculated to obstruct the process and increase Ms. McLean’s legal fees.” She granted the requested sum, leaving McLean to pay $23,884 of her total $252,384 legal bill.
The other hearing I had this week was one in which the ex-spouse continues to file frivolous suits, and now has taken his battle to a more sophisticated level – he files petitions and suits in courts that don’t have jurisdiction over family matters and appeals any and everything he can, or thinks he can. Most of these are thrown out, but the object is the same – to continue a campaign of control and harassment.
In this case he filed an emergency petition in a court where there was no jurisdiction, claiming that the ex-wife’s attorney should be ordered to give him documents which he claimed the lawyer had removed illegally from his home.
I have heard about the case from my friend and colleague over the years, but have never been in the courtroom with the man. This week, my friend was unable to appear in court, and asked me to appear in his stead. During the hearing, it became readily apparent that the guy was imbalanced, incoherent, dishonest at best, and that there was no jurisdiction whatsoever to the court.
Rather than finishing the hearing with all due speed and hitting him with court costs, the judge accepted that there was no jurisdiction, but attempted to reach an accommodation with me whereby the lawyer involved would give him the documents anyway.
I really couldn’t believe it.
As Justice Young said in the Ontario decision above, part of the rationale to award damages is to express society’s condemnation of this behavior. We’d like to see a little more of that around here.
In an important move along similar lines, in March of 2011 Judge Nili Maimon of the Jerusalem Family Court ruled that a “serial plaintiff” would be barred from filing suits without the express permission of the court.
You can see a copy of her decision here:צו חוסם
It’s a move that judges are understandably reluctant to make given the importance of the right to have access to the judicial system, but Judge Maimon’s decision does a good job of weighing the various constitutional rights of the various parties and achieving the appropriate balance.