{"id":1081,"date":"2023-04-05T20:34:57","date_gmt":"2023-04-06T00:34:57","guid":{"rendered":"https:\/\/www.debousquet.com\/blog\/?p=1081"},"modified":"2023-04-18T17:59:37","modified_gmt":"2023-04-18T21:59:37","slug":"no-holds-barred-when-a-wins-at-all-costs-divorce-strategy-means-costs-awarded","status":"publish","type":"post","link":"https:\/\/www.debousquet.com\/blog\/2023\/04\/05\/no-holds-barred-when-a-wins-at-all-costs-divorce-strategy-means-costs-awarded\/","title":{"rendered":"No Holds Barred When a \u201cWins at All Costs\u201d divorce strategy Means Costs Awarded"},"content":{"rendered":"

S. v. A. – <\/span><\/i>https:\/\/www.canlii.org\/en\/on\/onsc\/doc\/2022\/2022onsc55\/2022onsc55.html<\/span><\/i><\/a><\/i><\/p>\n

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.\u00a0<\/span><\/p>\n

Despite the best efforts of the parties, these emotions extend to any children involved. Worse, however, is when one side isn\u2019t putting in any effort at all. Then, the emotional damage can be catastrophic.\u00a0<\/span><\/p>\n

Hurt feelings and anger towards your former spouse may tempt you to adopt a \u201cwin at all costs\u201d 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\u2019s been divorced four times can lead to bad decisions inside and outside the courtroom, like attacking the other partner through the children.\u00a0<\/span><\/p>\n

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 <\/span>expensive<\/i><\/b> consequences.\u00a0<\/span><\/p>\n

Behold! The Consequences of One\u2019s Actions<\/span><\/h1>\n

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:<\/span><\/p>\n

    \n
  1. Aggravated damages<\/span><\/li>\n
  2. Punitive damages<\/span><\/li>\n
  3. Cost awards<\/span><\/li>\n<\/ol>\n

    Aggravated damages<\/i><\/b> are to compensate you for the personal harm you have suffered, comparable to if the other party physically harmed you.\u00a0<\/span><\/p>\n

    Punitive damages<\/i><\/b> are to punish the other party and to send a message that this type of behaviour is not acceptable.\u00a0<\/span><\/p>\n

    Cost awards<\/i><\/b> 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\u2019s time and money.\u00a0<\/span><\/p>\n

    If my ex is behaving badly in Family Court, will I get costs awarded?\u00a0<\/span><\/h2>\n

    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\u2019re going to be the one paying costs.\u00a0<\/span><\/p>\n

    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.\u00a0<\/span><\/p>\n

    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. <\/span>(Not actually legal advice: be polite to Judges)<\/span><\/i>.\u00a0<\/span><\/p>\n

    The Judge will consider each party\u2019s behaviour when deciding if someone has acted in \u201cbad faith\u201d 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 <\/span>full<\/i><\/b> 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\u2019s legal costs but <\/span>all<\/i><\/b> of them.\u00a0<\/span><\/p>\n

    What counts as Bad Faith?<\/span><\/h2>\n

    Bad faith can include a wide variety of bad behaviour. In the Family Law context, it\u2019s been defined by courts as \u201cdevious conduct designed to achieve an improper goal that causes harm to the other party or to the children.\u201d (<\/span>S. v. A.<\/span><\/i> 2022 ONSC 55 at para 51)<\/span><\/p>\n

    Unlike almost every other type of case, the Court weighs the effects of the parties\u2019 actions on an innocent bystander (the kids) above each other. This is because the interests of the child overrule anything else.\u00a0<\/span><\/i><\/p>\n

    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\u2019s children. Courts are quick to use cost awards to prevent and punish such behaviour.\u00a0<\/span><\/p>\n

    The Consequences of <\/span>this<\/span><\/i> Person\u2019s Actions<\/span><\/h1>\n

    A recent Ontario Superior Court decision in <\/span>S. v. A <\/span><\/i>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.\u00a0<\/span><\/p>\n

    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.\u00a0<\/span><\/p>\n

    The mother:<\/span><\/p>\n