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Costs in Bad Faith

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  • Costs in Bad Faith

    I was reading a previous post and Tayken asked if a party has ever been awarded costs for bad faith. Gary M said he had never seen it done. The following is a case where costs were awarded for bad faith. It really is a sad, sad, case if you read the entire trial history, which is available on canlii. Happy reading!

    Zanewycz v. Zanewycz, 2010 ONSC 2766 (CanLII)

  • #2
    here something more to understanding of ""

    M.G. v. G.G., 2010 ONSC 792 (CanLII)

    [9] In S.(C.) v. S.(M.) 2007 CanLII 20279 (ON SC), (2007), 38 R.F.L. (6th) 315 (S.C.J.) Justice Perkins provides a lengthy discussion of what constitutes bad faith:

    16 The mother in her costs submissions claimed 14 separate heads of "bad faith" on the part of the father in this case. "Bad faith" has been explained as "not simply bad judgment or negligence but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ... it contemplates a state of mind affirmatively operating with furtive design or ill will." See Biddle v. Biddle 2005 CanLII 7660 (ON SC), (2005), 137 A.C.W.S. (3d) 1164, [2005] W.D.F.L. 2089, 2005 CanLII 7660, [2005] O.J. No. 1056, 2005 CarswellOnt 1053 (Ont. Fam. Ct.), at para. [14]. The definition of "bad faith" in The Concise Oxford Dictionary of Current English (5th ed., 1964, ed. by H.W. Fowler and F.G. Fowler) is simply "intent to deceive". The essence of bad faith is the representation that one's actions are directed toward a particular goal while one's secret, actual goal is something else, something that is harmful to other persons affected or at least something they would not willingly have supported or tolerated if they had known. However, not all bad faith involves an intent to deceive. It is rare, but not unknown in family law cases, for bad faith to be overt -- an action carried out with an intent to inflict harm on another party or a person affected by the case without an attempt to conceal the intent.

    17 In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

    18 In construing subrule 24(8), I think there is an implication from the context of the provision that the bad faith must relate to the issues at stake in the case or to the conduct of the case -- not behaviour outside the issues in the case or in a separate (even if related) case -- in order to justify a costs penalty in the case.

    19 Several of the 14 heads of bad faith alleged by the mother, though certainly serious, distressing, unfortunate and even harmful behaviour for the parties and the children, have not been shown to fall within the ambit of bad faith intended by subrule 24(8). Examples of this conduct by the father are:
    • a motion brought by the father in person while he had a lawyer on record;
    • concealment of one of the children's location, in contempt of an order in a separate child protection case;
    • involvement of Canada Court Watch in the case, leading to publication of information about the children and the mother;
    • having one of the children assessed without the mother's knowledge or consent;
    • withholding consent on various issues in the case longer than necessary or reasonable, without intent to deceive or conceal or to inflict harm;
    • battling with the mother's lawyer in the course of cross-examination;
    • lodging complaints against lawyers and other professionals involved in the case with their governing bodies, if not done to inflict harm;
    • discussing the case in front of the children, contrary to their best interests;
    • tearing up the assessment report and calling it "garbage";
    • refusing to participate in reconciliation counselling;
    • failing to provide prompt income disclosure, without intent to deceive or conceal.

    All of these types of behaviour by the father occurred in this case. Globally, they amount to seriously unreasonable behaviour in the case, and will be dealt with accordingly under subrule 24(11). As well, they have increased the costs of the case and are deserving of sanction for that reason.

    20 I have not found that the father crossed the threshold of bad faith in the behaviour listed above, even in light of the enormous costs of this case, because I think he had a genuine belief in the rightness of his actions and in the correctness of the result he was seeking in the case. He knew, because he was paying major amounts of costs to his own lawyers along the way, that the mother's costs were significant to the point of being ruinous. But on the central contested issue of access to the youngest child, as well as on the financial issues, I do not find the requisite intent to harm.

    21 There are, however, some aspects of the father's behaviour in this case, as found in my reasons of 27 February 2007, that do fall within "bad faith" as intended by the rule. He deliberately did not obey court orders in the case, including orders to which he consented. He made complaints against lawyers and other professionals, when he was unhappy with the way they performed their duties, not merely to report what he believed to be negligence or misconduct, but also as his form of punishment and vengeance. Most significantly, though, the father waged a campaign against the mother, both through and with the children, to alienate the children from her, a form of emotional harm to the children and to her, and to cause her emotional distress. This was done in the guise of forging closer ties with the children. It is true that the mother was not blameless in dealing with the children but, as between the two parents, I found his motives were to cause harm to the existing bond between the children and the mother, whereas the mother was trying to hang on to her relationship with her children rather than to harm the father's relationship with them.


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