Written on behalf of Shariff & Associates
A recent decision by the Ontario Superior Court of Justice in the case styled S. v. A. demonstrates that bad faith in family litigation will not be tolerated by Ontario courts. The decision comes at the culmination of one of the longest family law trials in Ontario Superior Court history, which lasted 39 days amidst the backdrop of a case that spanned over 5 years. The overall dispute cost the former spouses nearly 1.7 million dollars, a number that greatly exceeded their personal savings and the available equity in the home they owned jointly.
You might be surprised to learn that Mr. S. And Ms. A. Had reached an agreement on financial issues, including child support, spousal support. and equalization on the first day of trial. The remaining 39 days were dedicated to resolving the former spouses’ “parenting dispute”. In that dispute, Ms. A. was funded largely by her brothers who were allegedly determined to “do whatever it takes to keep their nephews safe.”
The trial judge described Ms. A.’s approach to the parenting dispute as a “win at all costs” approach. Further, the judge found that Ms. A “acted in bad faith” because while she claimed to support her former spouse’s relationship with their children, she “intentionally took steps to sever their sons’ affection, sense of safety and self while with their father”. These actions caused their children to suffer emotional harm. Ms. A’s parenting claims “evolved over the course of the trial” and her ultimate goal was to “remove Mr. S. from her and the boys’ life, primarily through their rejection of him”.
Despite Ms. A.’s various parenting claims, Mr. S. was successful at trial and received a final Order for sole decision making. He and Ms. A. were also given a progressive parenting schedule that ended up very similar to what the two former spouses had agreed to prior to the trial. Further strengthening Mr. S.’s position was the fact that he was successful in his motion for a finding of contempt.
The facts that the court relied on in making the costs award
Generally, family law litigants are responsible for and accountable for the positions they take in litigation, and, in fact, have an obligation to continually assess the validity of their positions as the litigation progresses.
In this case, Mr. S. made a settlement offer to Ms. A. which Ms. A. rejected. In accordance with Rule 18(4) of the Ontario Rules of Civil Procedure, if a party receives an offer to settle that is as favourable or more favourable than the offer, that party is entitled to a full costs recovery from the date of that offer.
Mr. S. made 3 offers to settle to Ms. A. all of which she refused.
In addition, under Rule 24 of the Rules of Civil Procedure, courts are also able to take into account a variety of factors when deciding on the scale of a costs award. These factors include the following:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
Costs in family law decisions can be used to ensure just resolution
Generally, costs awards are designed to not only “indemnify successful litigants” but also to “encourage settlement” and to “discourage and sanction inappropriate litigation behaviour by litigants”. Considering the high stakes of family litigation and the potential impact on young children, Rule 2(2) of the Family Law Rules adds the fourth purpose, to ensure that cases are dealt with justly, as confirmed in a 2018 decision of the Ontario Court of Appeal.
In this case, Ms. A.’s statements during litigation did not match her actions outside of the litigation. For example, Ms. A. made statements to the effect that she would encourage and support their children’s relationship with Mr. S. and then consistently refused to allow Mr. S. contact with his children.
As pointed out by the judge, in parenting proceedings “ success alone is not a sufficient basis for an award of costs because the measure of success belongs to the child. It is the child’s success that is the object of the proceeding”. Further, the justice went on to state that “a successful litigant 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”.
Based on Ms. A.’s behaviour during the trial, the judge made a finding of bad faith and granted Mr. S. a full recovery of his costs of the parenting dispute and noted that Ms. A.’s litigation conduct “resulted in recklessly disproportionate litigation costs to Mr. S”, and confirmed that, in family litigation, parties are responsible for the financial consequences of their litigation on former spouses and an individual that engages in “win at all costs” litigation should be prepared to answer for the resulting litigation fees of their former spouse. Mr. S’s costs award was $677,610.
Always Consider the Best Interests of the Children
This decision is instructive to anyone involved in family litigation. The outcome is necessarily dependent on the best interests of any children involved. Former spouses need to be able to separate their personal feelings about their former spouses from those former spouses’ future relationships with their children. At the end of the day, courts may view protracted, unnecessary litigation, as an attempt to financially injure a former spouse, and therefore, not in the best interest of the children who depend on the financial health and well-being of both of their parents. Costs awards made under these circumstances will reflect a condemnation of bad faith or other improper behaviour of the former spouses.
Contact Shariff & Associates in Stouffville for assistance with mediation, settlement offers and understanding your rights and obligations as a party to a parenting dispute.
The family lawyers at Shariff & Associates work with clients to resolve their family law disputes through mediation. We will review your situation and provide a realistic assessment of the likelihood of successful outcomes and explore your options. We will advocate for the best possible outcome on your behalf. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.