Bad Faith Can Result in Significant Costs in Family Litigation

The justice system, particularly as it relates to family law, is no stranger to an overcrowding of cases. While proper legal representation goes a long way in mediating unnecessary litigation, parties involved in family law disputes can and do make mistakes by pursuing bad faith litigation, slowing down the legal process and causing others to spend unnecessary amounts of money. A recent decision from the Ontario Superior Court of Justice shows that behaving in such a manner can have costly consequences. The reasoning behind this decision could expand to other jurisdictions across Canada.

The Background

The parties were originally involved in a custody and access party which was described as an acrimonious process. A lengthy decision around custody and access was issued in 2018. In that decision, the court found the father had taken unreasonable and obstructive positions throughout the proceedings. The trial at hand came about as the mother sought full recovery of costs, amounting to $456,411.14.

The Position of the Parties

The mother argued that two factors should result in the awarding of her request for costs. The first is that the earlier trial resulted in a better offer than that she had offered to the father in an attempt to settle. Secondly, she relies on the bad faith and unreasonable behaviour of the father during the litigation period, stating he “conducted himself in bad faith and unreasonably, in a manner which substantially complicated the issues and evidence and resulted in high legal fees.” The father, meanwhile, stated the costs incurred by the mother are “grossly punitive, excessive, unreasonable and disproportionate to the complexity of the proceeding.”

The Court Examines the Father’s Behaviour

The court began its analysis by summarizing the father’s behaviour during the trial, calling attention to false allegations he made against the mother, which he relied upon in an ex parte motion to withhold access to the child and restrict the child’s place of residence. He defended some of these false allegations throughout the duration of the trial. These allegations resulted included the requirement of “supervised access for a significant period of time based on nothing other than false allegations.” The court also described how he “failed to reasonably sign travel consents in March 2017 and September 2017, in one case resulting in a consent order at a case conference. All of these drove up legal costs. (The father) failed to consult (the mother) on health, medical and extra-curricular activity issues, failed to share information appropriately, and made decisions about medical care and religion unilaterally. He dismissed (the mother’s) attempts to consult on issues and failed to respond to her concerns.”

Awarding of Costs

There are a number of purposes behind the awarding of costs in litigation, including:

• partially indemnifying successful litigants;
• encouraging settlement; and
• discouraging and sanctioning inappropriate behaviour by litigants.

The court in the case at hand explained that the Ontario Family Law Rules “only expressly contemplate full recovery costs where a party has behaved unreasonably, in bad faith, or has beat an offer to settle under.” The types of bad faith the court considered were:

• behaviour shown to be carried out with intent to:
  • inflict financial or emotional harm on the other party or other persons affected by the behavior;
  • to conceal information relevant to the issues; or
  • to deceive the other party or the court;
• behaviour relating to the issues at stake in the case or the conduct of the case;
• costs incurred in relation to the issues affected by the bad faith; and
• the essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose.

In this case, the court found the father’s behaviour had met the threshold to establish bad faith, listing the following examples:

• Requiring supervision and refusing to waive supervision, involving counsel and driving up costs;
• Refusing requests for any parenting time in Buffalo; refusing overnight parenting time requests;
• Failing to accept recommendations from Buffalo physicians and requiring second opinions in Toronto;
• Failing to consult the mother on issues from caregivers to extracurricular to religion;
• Failing to reasonably accommodate travel and weather-related requests;
• The father allowed his own father to take their daughter to the doctor without informing the mother and indeed misrepresented that he had done so, and scheduled appointments and referrals without her consent; and
• When enrolling the child in programs, the father consistently failed to advise the mother of the child’s activities, failed to seek her consent, and for many months failed to list the mother as a parent or provide her contact information to the programs.

As a result, the court awarded full costs to the mother. This case is a great example of how the courts can use their discretion to award full costs when the situation permits doing so. Further, it is a clear lesson for all parties involved in family litigation across Canada to act in good faith, lest they potentially find themselves on the hook for the significant costs as a result of their behaviour.

At Mincher Koeman, our lawyers understand the emotional and financial stress that family law matters, including those related to child custody and support can bring. Our team is dedicated to helping you move forward through your family law issues, taking the time to listen to your unique circumstances, understanding your goals, and working towards those goals. We can be reached by telephone at 403-910-3000 or online. Please reach out today to book your initial appointment.