Acting in bad faith during a divorce can be costly

By LegalMatters Staff • Divorce can stressful enough without having to worry about conduct that can be construed by the court as acting in bad faith.

“An acrimonious divorce with high levels of conflict has the potential to push people to do things that blur the line between defending their legal rights and acting in bad faith,” says Edmonton family lawyer Sean Schaefer. 

Wasting valuable court time by acting unfairly or unreasonably has the potential of colouring a judge’s opinion of you, he says, which could ultimately lead to you receiving a negative outcome. 

While some behaviours may be obvious examples of acting in bad faith, it is an issue that may not be easily understood by spouses in a divorce, Schaefer says.

Ontario Court Justice Heather McGee laid out a helpful foundation in a recent judgment.

“A finding of bad faith requires more than a pattern of sustained unreasonable litigation conduct,” she ruled. “Bad faith is devious conduct designed to achieve an improper goal that causes harm to the other party or to the children. The party need not intend to cause the actual harm occasioned, provided that the party acted recklessly or in a manner that should have been known would cause harm without justification.”

Schaefer says examples of acting in bad faith can include:

• hiding assets or not fully disclosing relevant information;
• lying about income and expenses;
• dragging out court proceedings to run up the other party’s legal bills; and 
• making false allegations. 

“Taking a ‘win-at-all-costs’ approach in a family law dispute or playing hard and fast with the truth may prove to be costly in ways you did not foresee,” he says.