By Sean Schaefer
We all make mistakes. It can be easy to overlook or forget an important detail when under stress. A divorce can be one of those times when emotions are high and your concentration is not in sharp focus. You can be forgiven for making a misstep while litigating your divorce. If your intent was not malicious, a mistake is likely to be seen as an inconvenience that can be corrected. However, a family court judge will not be prone to leniency if it is found that you acted in an intentional and malicious manner.
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. Taking a “win-at-all-costs” approach in a family law dispute or playing hard and fast with the truth could end up delaying court proceedings and may prove to be costly in ways you did not foresee.
It is important to remember that our family courts have historically been overburdened. That worsened during the COVID-19 pandemic. Wasting valuable court time can not only have financial implications but if you are seen to be acting in bad faith, it could colour a judge’s opinion of you. That could ultimately lead to you receiving a negative result in court. It is important to note that acting in bad faith does not necessarily have to result in actual harm to have consequences.
At Demas Schaefer Family Lawyers, our experienced team will work with you to ensure you are providing the court with the necessary and timely information needed to settle your case fairly, no matter how complex or high-conflict the dispute.
Understanding acting in bad faith in family law
Simply stated, if you do such things as tell lies or hide assets you could be found to be acting in bad faith. But while some behaviours may be obvious examples of acting in bad faith, the issue may not be easily understood by spouses in a divorce. Parties in litigation may take positions that are not reasonable but that does not necessarily rise to the level of acting in bad faith.
In a recent judgment, Ontario Court Justice Heather McGee laid out a helpful foundation.
“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.”
In the case, McGee awarded ordered a mother of two to pay $667,000 in court costs to her ex-husband after ruling evidence in the trial was “replete with actions of bad faith” that 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.”
The awarding of costs has a specific goal
“Costs rules are designed to indemnify successful litigants; to encourage settlement; and to discourage and sanction inappropriate litigation behaviour by litigants,” McGee wrote in her judgment. “In high conflict parenting cases, the critical purpose of an award of costs is to curb litigation behaviour by providing a sanction for unreasonable litigation conduct. Unless costs are consistently and predictably awarded in accordance with the Family Law Rules there is no downside to saying one thing and doing another.”
Courts can also award substantial costs if you elect not to fully disclose financial information or act unreasonably, including ignoring reasonable offers of settlement. It has been said that “failure to disclose material information is the cancer of family law litigation”. Where Formal Offers are made and not accepted cost awards can be doubled. In some cases, such as the recent case of Barkwell v. McDonald, a party can be ordered to pay the entirety of the other party’s legal expenses.
Court has its costs
Going to court can be expensive. Pursuing or defending a legal dispute can be accompanied by a myriad of costs. Depending on the complexity of the case, you could be expected to provide financial statements and psychiatric and/or child welfare reports. Expert witnesses may also be necessary. There can be filing fees along with expenses associated with travel and witnesses. Then, of course, you must pay for your own legal representation.
You may have to provide further proof of your claims. For example, if your former partner decides to refute some of your financial assessments or the validity of your claim to personal property, you could be expected to come up with more evidence to back your claim.
These costs can add up. If you have been acting in bad faith, a judge can order you to pay a portion, or in some cases, all of your ex-spouse’s legal expenses on top of your own. Remember, the court will not only want to send a clear message to the person who is acting in bad faith but deter others as well.
Examples of acting in bad faith
In a contentious divorce spouses may be inclined to seek vengeance. But acting in bad faith is not always motivated by a desire to punish the other partner. Some people may believe they are entitled to a large share of the matrimonial property. Others want sole custody of the children and some may want to limit the amount of support they will be expected to pay. Examples of acting in bad faith include:
Hiding assets or not fully disclosing relevant information
While it is difficult to conceal an asset after a divorce has commenced, a person anticipating the breakup may begin to transfer assets prior to filing.
Lying about income
Misrepresenting income is typically used as a ploy to reduce support payments. A person owning their own business may try to divert money into other accounts or claim expenses that do not exist.
Dragging out court proceedings
A person who has more financial resources may constantly seek delays, ignore discovery requests, file unnecessary motions or overcomplicate issues. It can be an attempt to run up legal fees that their former partner cannot afford so that they are more inclined to settle instead of continuing the legal battle.
Making false allegations
A person may make claims of domestic violence or emotional abuse in order to win sole custody of the children.
We are here to guide you
Divorce is difficult enough without having to worry about conduct that can be construed by the court as acting in bad faith. At Demas Schaefer Family Lawyers, we will stand by you to ensure your rights are protected, providing the support and experience you need. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.