Finding Of Bad Faith Leads To Significant Costs

March 18, 2022

Written on behalf of Feigenbaum Consulting

It’s natural that people who are going through separation or divorce are going to disagree on things from time to time. After all, a relationship can end because of a couple’s inability to see eye-to-eye on things. However, it’s critical to remember that even if bad blood exists between parties to a separation, it is in everyone’s best interests to work together to achieve resolution. As we see in a recent decision from the Ontario Superior Court of Justice, a failure by one party to abide by this guidance can result in significant costs awards for the other.

Father is entirely successful at trial

The decision being discussed today concerns costs for a trial that occurred in 2021. The original trial, which lasted for nine weeks, was noted as “one of the longest parenting trials heard in the Superior Court. The decision related to child support, spousal support, and the equalization of property between the mother and the father.

Ultimately, the father was successful, receiving sole decision-making for the parties’ children as well as a progressive parenting schedule that would see his parenting time increase. The father had made offers to the mother before and during the trial, though he was ultimately awarded more than what he requested in those offers. This is a contributor to the costs decision, but as we will see, it is not the only deciding factor. The costs of the trial were significant. The court summarised the father’s expenses as totalling $886,389, leading to a question of how much of that total the mother should be on the hook for.

Determining how much to award in costs

The court began its analysis by stating that the father is entitled to an award of costs. The court’s task was not deciding if he should receive costs, but only how much he should receive.

The mother told the court she was of limited means and that she should pay no more than $50,000 in costs. However, the court stated that there are a number of considerations it would have to take into account.

The first consideration was the father’s measure of success, which can be analysed by looking at his offers to settle vs what he was ultimately awarded. The court said that when a party receives more than they offered for or asked for, a full recovery of costs can be ordered. In this case, the father made three offers during and prior to the trial. His second offer included joint decision-making authority over health and education, while the mother would have sole decision-making for matters related to culture, language, religion, and extracurricular activities. This was rejected. Ultimately, the court found that the father’s offers reflected a child-centred approach.

The mother made more offers to settle than the father did, though most of her offers included allowing her to move with the children and maintain all decision-making responsibilities. Her offers also included mandatory time to be spent with therapists for the family, but the court found these inclusions to be strategic rather than made with the best interests of the children in mind. The court found that the mother had a habit of rejecting a therapist as soon as a recommendation was made which she did not agree with and that these rejections usually followed a complaint to the professional’s regulatory body. Finally, the court stated that the mother had denied any contact between the father and the children in the time leading up to the trial.

How does the mother’s behaviour contribute to a finding of costs

The court wrote that when it comes to high conflict parenting cases, one of the purposes of awarding costs is to curb litigation behaviour by including sanctions for unreasonable litigation.

The mother’s position at the start of the trial was that she should be granted sole decision-making responsibility for the children and be able to move without having a plan in place for parenting time between the father and children. As we stated earlier, the mother withheld the children from the father in the time leading up to the trial.

The court pointed to Rule 24(8) of the Family Law Rules, which directs courts to consider if a party to litigation has acted in bad faith, stating that case law has determined that depriving a child of a relationship with a parent is in bad faith.

The court ruled that the trial was “replete” with actions of bad faith by the mother. In addition to what was already mentioned, the court listed actions she initiated, including,

“a surreptitious baptism, a pattern of sabotaging Court Orders, a contemptuous breach of the Order of November 2, 2018, a series of false allegations of physical, sexual and emotional abuse to child protection agencies, and the deliberate and sustained frightening of the boys, particularly the oldest, so that they would reject their father and resist any contact.”

The court found the trial judge had repeatedly cautioned the mother, and the mother had been made to pay full costs for other matters before the court for similar reasons. Because of this, the court found that the father was entitled to a full recovery of costs. The court calculated the expenses incurred by the father and determined his full costs should be $677,610, which the mother was ordered to pay.

Contact Feigenbaum Law in Toronto for experienced advice on family law matters

At Feigenbaum Law, we understand the importance of ensuring your children are provided for after separation and the many issues that parents have to work through to ensure the best for their children. Mark Feigenbaum provides clients with reliable and strategic advice in family law disputes to help them move forward with as much financial stability as possible, keeping clients’ best interests in mind every step of the way, including advice aimed to keep clients from pursuing risky litigation tactics, such as those we saw today. Contact us  online or by phone at 905-695-1269 (toll-free at 877-275-4792) to book a consultation.

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