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Family law proceedings can be an emotional experience, marked by high levels of conflict and complex issues that need to be resolved. In some cases, the parties may take actions that go beyond pursuing their rights and employ aggressive tactics or behave unreasonably. Litigants who take this course run the risk that a judge may find their actions constitute bad faith if there is intent to deceive or inflict harm. And this conduct can have consequences when it comes to awarding costs.
Parties Had Divided Success at Trial
In G.P.R. v. A.K., the parties participated in a 16-day trial covering numerous issues arising from their separation. Following the outcome, they disagreed on the costs of the trial, with the mother seeking full recovery of her costs of $342,216.40. She claimed she was successful and achieved a result that was more favourable than her offer to settle. She also alleged the father engaged in bad faith. In contrast, the father did not seek costs but suggested that the mother’s costs be fixed at $7,600.00. He also argued there was divided success, and that the costs award should account for his inability to pay.
Section 24(14) of the Family Law Rules deals with setting costs amounts. It states that in setting the amount of costs, the court may consider:
- The reasonableness and proportionality of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
- Each party’s behaviour;
- The time spent by each party;
- Any written offers to settle;
- Any legal fees;
- Any expert witness fees; and
- Any other expenses properly paid or payable.
The judge found that the mother was entitled to costs from the date her offer to settle was made, and full recovery thereafter in relation to parenting and child support terms. But even without making the offer, the mother was entitled to costs based on her general success in the trial. Justice Finlayson agreed with the father that there was some divided success, but it was not evenly divided. The mother was completely successful in parenting issues and also had some success with child support. The judge also determined the mother should not receive costs in connection with property issues.
Bad Faith Requires Malice or Intent to Harm
Rule 24(10) of the Family Law Rules indicates that “if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately”. In S.(C.) v. S.(M.), Justice Perkins considered the definition of bad faith. He explained that it involved behaviour that is “carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court”. He went on to clarify that the intent to harm, conceal, or deceive does not need to be the individual’s primary intent, as long as it is “a significant part of the person’s intent”. However, misguided attempts to achieve the party’s ostensible goal without any intent to inflict harm, or to conceal relevant information, or to deceive, prevent a litigant’s actions from being found to be in bad faith.
Similarly, in Jackson v. Mayerle, Justice Pazaratz further considered the scope of bad faith. He noted that it differs from unreasonable behaviour, and arises when “a person suggests their actions are aimed for one purpose when they are aimed for another purpose” and it is done “knowingly and intentionally”. Therefore, the Court needs to find “malice” or “intent to harm” on the part of the party. In G.P.R. v. A.K., the judge agreed with the mother that the father had exhibited bad faith. Several findings in the trial judgment specifically supported a finding of bad faith. This included general inappropriate conduct during the trial, efforts to deceive the court and improper use of evidence. He also failed to meet his disclosure obligations and brought a variety of mid-trial motions that were without merit. The judge also noted that the father’s habit of bringing multiple motions had continued even after the trial ended. Although not every motion he brought was necessarily brought in bad faith, the judge concluded that they were a nuisance and that, through these actions, the father had forced the mother to bear the expense of responding to them. The judge outlined several of the father’s post-trial motions, including requests for parenting time and an extension of time to file costs submissions. In each case, Justice Finlayson found the requests to be without merit.
Nevertheless, the father argued that he did not engage in bad faith. He claimed to be under “extreme emotional stress during and leading up to the trial”, and also indicated he had bipolar disorder and was undergoing treatment. Yet, the judge emphasized that the father had introduced limited evidence about his mental health during the trial. Likewise, there was no evidence that he had bipolar disorder. Overall, the judge concluded that the father had engaged in bad-faith behaviour, but, as an alternative, would at least have found the father engaged in unreasonable behaviour.
Judge Finds Both Parties Behaved Unreasonably
While the father did not seek costs, he alleged that the mother behaved unreasonably during the trial. Part of his claim was based on the mother’s unsuccessful handling of certain issues. On this point, the judge looked to Climans v. Latner, which confirmed that the mere fact that a party is unsuccessful on a particular issue does not mean that their legal position was unreasonable.
Ultimately, it was possible to conclude that both parties engaged in unreasonable trial behaviour in different ways. The trial judgment found that the mother pursued an unreasonable trial strategy, while the father adopted shifting positions throughout the trial. Justice Finlayson determined that, while the mother was entitled to recover costs based on her offers to settle, she would not recover costs on every issue, which acted as a discount for her unreasonable behaviour.
Overall, when assessing the amount of costs, courts have emphasized that “proportionality and reasonableness are the touchstone considerations to be applied”. The judge considered the factors in Rule 24(14) and found no reason to limit the mother to recovering only $7,600.00 in costs, as the father requested. The mother’s legal costs amounted to $342,216.40, which the judge did not find surprising, given the numerous issues and witnesses, and the fact that all issues in the case were in dispute. But the judge estimated that one third of the trial concerned the residential property, an issue in which the mother was unsuccessful, so Justice Finlayson fixed the mother’s costs at $220,000.00 and ordered full recovery of that amount, rather than her total bill.
Facing High-Conflict Family Litigation? Contact Johnson Miller Family Lawyers in Windsor-Essex County
Family law disputes can quickly become complex, costly, and emotionally charged, especially where allegations of bad faith or unreasonable conduct arise. As this case demonstrates, the way parties conduct themselves throughout litigation can have a direct and significant impact on cost awards, including the possibility of full recovery against a party found to have acted in bad faith.
The talented family and divorce lawyers at Johnson Miller Family Lawyers provide experienced, strategic representation in all areas of family law. We work closely with clients to manage risk, maintain credibility before the court, and pursue efficient, outcome-focused resolutions. If you are involved in a high-conflict family law matter or have questions about your rights and obligations during litigation, we can help.
Contact us online or call 519-973-1500 to schedule a confidential consultation and learn how we can protect your interests at every stage of the family law process.
