Acting in bad faith in a divorce can have serious consequences

By Tony Poland, LegalMatters Staff • Parents who take a “win-at-all-costs” approach in a family law dispute can find themselves facing serious court sanctions as demonstrated in a recent judgment that saw one mother ordered to pay more than $667,000 in court costs, says Toronto family lawyer A. Julia P. Tremain.

In the case, a lengthy parenting dispute between an estranged couple “cost $1.7 million dollars, an amount that well exceeded their personal savings and their equity in a jointly owned home,” according to Justice Heather McGee.

She said evidence in the trial “was replete with actions of bad faith” by the mother and included “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.”

Tremain, a partner with Waddell Phillips Professional Corporation, who was not involved with the case but comments generally, says one of the key takeaways from the ruling is that acting in bad faith can result in a significant cost award since the court wants to send a message that will act as a deterrence.

‘Important to think about the implication of their positions’

“It is extremely important for people to think about the implications of their positions as they go through litigation,” she tells LegalMattersCanada.ca. “Part of our job as lawyers is to have frank discussions with our clients about the dichotomy between doing one thing and saying another.”

The essence of bad faith is one party claiming to be acting with one purpose while being motivated by another, according to the judgment.

Court found the mother claimed to be supporting an ongoing relationship between her two sons and their father but was actually attempting to sever it.

“Assessment parenting recommendations revealed that she had never been content to have sole decision making for her sons and a regular parenting schedule; but rather, that her litigation goal was to remove [the father] from her and the boys’ life, primarily through their rejection of him,” McGee wrote. “A finding of bad faith requires more than a pattern of sustained unreasonable litigation conduct. 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.”

Tremain says there is “a fairly high test” in deciding if someone has acted in bad faith.

Behaviour may not rise to the level of bad faith

“People make mistakes, people take positions that may not be reasonable, but it does not necessarily rise to the level of bad faith,” she says.

As an example, Tremain says a parent could have had very little contact with their child over the years but may want equal parenting time following a divorce. It may not be a reasonable position and there may be little evidence to support a claim for equal parenting time, but that doesn’t mean that parent is acting in bad faith.

As well, one parent may call the Children’s Aid Society (CAS) when their child returns from a visit with a minor injury. Tremain says that parent may not necessarily be trying to use the CAS against the other parent.

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“When people are in a custody battle, they can be hyper-vigilant and call CAS because the child came home with a bruise on their knee. But children fall all the time,” she says. “Calling the CAS is not necessarily acting in bad faith. But if that same parent calls 10 times over the course of a year and makes unfounded allegations, that may be a much different situation.”

Tremain says a child’s welfare is of utmost importance to the court. A child’s access to both parents is a significant consideration.

“Judges want parents to support their children and their emotional well-being,” she says. “The parents may not be in a relationship with each other. They may not like each other and want minimal contact with each other. But absent a child protection concern, parents should promote the relationship between their child and the other parent.”

Judge had concerns about the mother’s actions

In this case, says Tremain, the judge “had real concerns about the mother saying she was promoting a relationship between the boys and their dad while doing the opposite.”

“That kind of behaviour would be troubling to a judge and it would be something they would discourage and sanction,” she says.

In the end, the woman not only was ordered to pay her ex-husband’s court costs but he was also given primary care of the children.

Tremain says the case should serve as a primer of what not to do in parenting decision cases. 

“Things like this do happen. As lawyers, we are there to help clients put a reasonable position forward that is supportable by the evidence,” she says. “It is essential to ensure that there isn’t a contradiction between what the client is saying and what they are doing.”