Father finds out the hard way that bad faith can cost you big time in court

Family law litigation works best when both parties’ conduct is rooted in good faith and focused on an efficient resolution of the disputed issues. Unfortunately, that is not always the case. Bad faith, on occasion, creeps its way into a family law case and the results can be insidiously disastrous, both emotionally and financially.

That is precisely what happened in a 12-day custody and access trial before Justice Kristjanson of the Ontario Superior Court of Justice. In that case, both parents were 27 years old and embarking upon careers as medical doctors, with their residencies to commence just months before the birth of their daughter. The mother’s neurology residency was in Buffalo, N.Y., while the father’s physiatry residency was in Toronto. The father ended the relationship and their daughter was born six months later. The parties reconciled briefly following their daughter’s birth. That reconciliation, however, proved to be short-lived and a fight over the daughter quickly ensued.

Notwithstanding the parties’ plan for the child to reside with the mother in Buffalo, the father commenced litigation in Ontario, seeking sole custody and an order the daughter reside with him in Toronto. The judge found that, over the course of the protracted two-year litigation, the father made false allegations against the mother in order to 1) withhold access, 2) restrict the child’s residence to Toronto, and 3) insist the mother’s access to the child be supervised. The father misled the court in order to obtain a strategic advantage in the litigation. According to the judge, the father’s strategy was to “undermine the mother’s role and competence as a parent” and was “designed to inflict emotional and financial harm.” The father’s actions were “harmful to the daughter and were taken to deceive both the mother and the court.”

The father’s antics got him nowhere. The mother was granted sole custody of the parties’ daughter and the daughter is to reside primarily with the mother in Buffalo. While the father was granted generous weekend and holiday access, the result is a far cry from the orders the father sought in the litigation. The judge’s unsympathetic perception of the father did not end there. The judge’s companion decision in respect of who would pay the legal costs is a thorough and stern commentary on the father’s actions in the litigation.

At the outset of her costs decision, Justice Kristjanson notes that she “found the father took unreasonable and obstructive positions throughout the proceedings.” Against that backdrop, the judge goes on to assess whether the father’s conduct amounted to bad faith. In family law proceedings, a finding of bad faith, while rare, has serious implications in determining the extent of a litigant’s obligation to pay the other party’s legal costs. Specifically, under Ontario law, “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.”

Since the impact of such a finding is of significant import, the threshold in reaching such a finding is relatively high. To come within the meaning of bad faith, behaviour must be shown to: 1) be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour; 2) conceal information relevant to the issues; or 3) to deceive the other party or the court. According to Justice Kristjanson, “the essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose.”

Given the factual matrix, the judge, without hesitation, found the father’s conduct had amounted to bad faith. On that basis, Justice Kristjanson embarked upon a determination of the amount of costs the father owed the mother. The mother sought costs of $456,411. The father resisted, saying that the mother’s fees were excessive and as a result of “over-lawyering and excess time.”

The judge disagreed, ordering the father to pay $420,000 to the mother. In doing so, the judge noted that, “The position of the Father in these proceedings resulted in the Mother incurring substantial legal fees. The Father cannot be permitted to litigate in the manner he did with impunity. The Mother’s legal fees could have been substantially lower, but for the unreasonable positions and bad faith conduct of the Father. The costs order in this case in part reflects the goal of discouraging and sanctioning inappropriate behaviour.”

This decision serves as a warning to family law litigants that the court process cannot be used to exacerbate conflict. Rather, the court process should be used to resolve conflict. Losing sight of this important distinction will likely be met with sharp criticism and liability for costs.

This article was originally published in the National Post.