Divorce is an emotional time for all parties involved. Even in the most amicable cases, there will be tensions, a lot of which are created by the fear of what your ex might do now that you are no longer functioning as a unit.
Despite the best efforts of the parties, these emotions extend to any children involved. Worse, however, is when one side isn’t putting in any effort at all. Then, the emotional damage can be catastrophic.
Hurt feelings and anger towards your former spouse may tempt you to adopt a “win at all costs” attitude. This is even more true in cases where one or both parties feel the other has done something morally blameworthy, whether those feelings are valid or not. Bad legal advice from friends, family and that one person you know who’s been divorced four times can lead to bad decisions inside and outside the courtroom, like attacking the other partner through the children.
For anyone who thinks that using children as pawns is a wise idea in Court, think again. In Family Court (the same as in any Court case), bad behaviour can have expensive consequences.
Behold! The Consequences of One’s Actions
In any Court case, when one party engages in bad behaviour, there are three main types of negative awards that may be made against them. These are:
- Aggravated damages
- Punitive damages
- Cost awards
Aggravated damages are to compensate you for the personal harm you have suffered, comparable to if the other party physically harmed you.
Punitive damages are to punish the other party and to send a message that this type of behaviour is not acceptable.
Cost awards are when the other side is forced to pay part of your legal costs, generally because you won or they rejected a fair offer to settle. Costs are also used to punish bad conduct, the kind of conduct that leads to dragged-out cases and wastes everyone’s time and money.
If my ex is behaving badly in Family Court, will I get costs awarded?
That depends, and without knowing the details of your case, is impossible to say. Generally, there are a few factors that determine whether you will get no costs, some costs, full costs, or if you’re going to be the one paying costs.
In part, this is because cost awards are discretionary. This means that although there are numerous rules and guidelines that affect how they are determined, it is up to the Judge to weigh all the relevant factors.
One key factor taken into account is the behaviour of each side. In a case, everyone is expected to behave with a degree of respect toward the other side and the Court. Failing to do so can lead to severe consequences, including imprisonment for Contempt of Court. (Not actually legal advice: be polite to Judges).
The Judge will consider each party’s behaviour when deciding if someone has acted in “bad faith” when determining cost awards. If both sides have acted badly, no costs may be awarded. If only one side has acted in bad faith, Courts may make them pay costs on a full indemnity basis. This means that someone who has acted in bad faith may be on the hook to pay not only some or most of the other side’s legal costs but all of them.
What counts as Bad Faith?
Bad faith can include a wide variety of bad behaviour. In the Family Law context, it’s been defined by courts as “devious conduct designed to achieve an improper goal that causes harm to the other party or to the children.” (S. v. A. 2022 ONSC 55 at para 51)
Unlike almost every other type of case, the Court weighs the effects of the parties’ actions on an innocent bystander (the kids) above each other. This is because the interests of the child overrule anything else.
When someone is acting in bad faith, this means they are saying one thing while doing another, often hiding harmful ulterior motives. It is important to remember that not all bad behaviour is bad faith. Conduct that causes harm to children involved, such as manipulation and deceit, will most likely qualify as bad faith. Courts are vigilant to ensure that parties do not act in bad faith that harms their or anyone else’s children. Courts are quick to use cost awards to prevent and punish such behaviour.
The Consequences of this Person’s Actions
A recent Ontario Superior Court decision in S. v. A is an excellent example of when bad behaviour and bad faith come back to bite one of the parties. Not only was the father more successful at trial, but the court found that the mother engaged in unreasonable and bad faith conduct throughout the litigation.
Like many divorce cases, this case involved child support, spousal support, and parenting responsibility. Unlike many divorce cases, it also involved sabotage, fabrication, and even surreptitious baptism.
- Ignored, violated, and even sabotaged court orders;
- Instilled fear into her sons in order to sever their relationship with their father;
- Fabricated allegations that the father had sexually, physically and emotionally abused their sons;
- Refused to let the children see their father after the Children’s Aid Society (CAS) completely cleared the father;
- Used false CAS complaints to prevent the children from spending Christmas with the father;
- Engaging in a surreptitious baptism;
- Hiring private investigators to follow and report on Court Ordered access supervisors; and
- Used family resources to fund all the above instead of supporting the children.
Due to the overwhelming amount of bad behaviour and bad faith, the Court found the mother unreasonable and that it was causing harm to the children.
Offers to Settle Affect Costs Too
Another part of acting reasonably is making and accepting offers to settle. In this case, the father made three separate offers to settle during the course of the litigation. The court found that all of these offers “reflected a child-centered, ongoing assessment of the evidence that was reasonable and proportionate…” (para 27)
The mother also made several offers to settle throughout these proceedings. Unlike the father’s offers, hers were unreasonable. The offers she put forth would have led to increased conflict between the parties.
One example of her offers included a term which required the parties to retain a therapist, parenting coordinator and counsellor for the children. While this could be reasonable on the surface, the Court found that this request was not for the resolution of the conflict, but was really for the wife to advance her own position.
Over and over again, her offers reflected nothing more than her “win-at-all-costs” attitude.
Children are the Top Priority in Family Law
The main concern in Family Court is always the child’s success and best interests. In S. v. A. it was clear that the father had the best interests of the children as a priority and so the Court found him to be the most reasonable and successful party.
In their decision, the Court stated that a successful party is “a parent who respects a child’s ongoing attachment to his or her other parent while uncoupling from that parent as a former partner.” (para 48)
In this case, the father took a reasonable position and was willing to compromise with the mother. The mother, on the other hand, was not as reasonable and she engaged in behaviour that severely harmed the children’s relationship with their father.
In the end the mother was required to pay substantial legal costs to the father, to the tune of $677,610.00.
The Court Will Not Let You Escape Responsibility
The Court refused to reduce this cost award or offset the costs against child support as per the mother’s request. In the end, the father was ultimately awarded primary care responsibility over the children.
It is also important to remember that Court decisions are publicly available to everyone. While the Courts anonymize decisions down to the parties’ initials, it is easy enough for others to figure out the truth, be that your friends, your children’s teachers, your employer, your future partners, and even your children. Lying about the other spouse to third parties, can also be bad faith behaviour.
Throwing Rocks, Verbal or Otherwise, Never Works
The main points you should take from this case are:
- Bad behaviour can lead to significant costs being awarded against a party;
- Offers to settle can have a large impact on costs awards;
- Follow any orders or directions from the Court;
- Courts keep the well-being of the children involved as a top priority; and
- A win-at-all-costs approach will be punished by Courts in family law proceedings.
So, if your former spouse engages in “devious” conduct throughout family law proceedings, do not stoop to their level. There are rules in place to ensure that they will not get away with their bad behaviour, but if you also start acting badly, everyone loses.
Exes who devolve into bad faith conduct may want to think twice as they will likely have to pay a significant price for their actions, both emotionally and financially. If you have given over to your anger or hurt in the past, it is not too late to change course. Even if one or both sides have already engaged in bad behaviour, changing your actions now can, at bare minimum, reduce any future awards against you.
If you are stuck in a case with bad-faith conduct or want to avoid it from the jump, contact De Bousquet PC today. Our lawyers will work to ensure that a fair outcome is obtained and advise you on how to act in good faith. We are empathetic towards the trials (no pun intended) and tribulations of divorce cases. Reach out to the team at De Bousquet PC today.