An unusual scenario arose in a recent case called Jurrius v. Rassuli, where the court was asked to decide whether to order the father to pay the mother about $162,000 in legal costs that arose in the trial between them. The former couple’s disputed issues included parenting time and child support, and the mother had been vindicated in virtually every respect.
One of the key factors in the court’s determination on legal costs, was whether the father had acted in “bad faith” during the proceedings. This was important because under Rule 24 of the Ontario Family Law Rules, if the court found the father acted in bad faith, it could order him to immediately pay the mother costs on a full recovery basis. (And in this context, “bad faith” is more than mere bad judgment. It includes an intent to deceive or mislead, and includes a “lack of honesty and trust”).
In assessing legal costs, the court assessed the relevant evidence. It started by saying it had “major problems” with the father’s credibility. A key example of this, and one that “particularly troubled” the court, related to the false sworn evidence he gave about strapping a replica gun to his infant child’s crib. This was at a time when he and the mother were briefly living together. Even worse, once he and the mother spilt up, he falsely accused her of doctoring a photo of the gun on the crib, as part of his court application for parenting time.
The court explained:
The court was troubled by the fact that a father would find it appropriate to strap a replica gun to a child’s crib.
However, the court was far more troubled by the fact that in a motion and even more troubling in a reply affidavit … the respondent father had in sworn evidence alleged that the applicant mother had included a photograph of the replica gun strapped to the child’s crib which he alleged was “doctored” or “Photoshopped” (the court’s interpretation of his statement). At trial, under cross-examination, he had admitted that he had in fact strapped this replica gun to the then infant’s crib and that the photograph submitted by the applicant mother in her responding materials to his motion was in fact a valid photograph accurately depicting what he had done.
… [T]he fact that the respondent father would not only mislead a court but represent that the innocent party [i.e. the mother] was misleading the court is of great concern to this court when it comes to the analysis of whether or not the respondent father acted in bad faith.
The court added the gun incident was so germane to the best interests of the child, that it needn’t go further to find other indicators of the father’s bad faith for costs purposes. The court said:
This court finds that the fact that a father would find it appropriate to strap a replica gun to a newborn’s crib, in the opinion of this court would be germane to the issue before the court in terms of parenting time for that father with the child. Therefore, the court finds that it would have found that the respondent father acted in bad faith by simply denying at the motion that he had in fact placed a replica gun on the child’s crib as was alleged by the applicant mother.
It would have been bad enough if the respondent father had simply denied placing the replica gun on the child’s crib. To allege that the applicant mother had “doctored or Photoshopped” the picture and therefore that she was misrepresenting a germane fact to the court is something that the court finds abhorrent.
For the respondent father in this case to represent to a court that a mother has misrepresented a photograph to the court all the while knowing that the photograph is in fact an accurate and not a doctored photograph and that it was he who placed that replica gun on the child’s crib is something that this court cannot be seen to condone or tolerate.
If this is not evidence of bad faith, then the court finds it extremely difficult to consider a situation which would be considered bad faith.
Even leaving aside the bad faith element, the court also noted that the father had acted unreasonably in other instances as well; for example he could also have entertained the mother’s settlement offers long before trial.
In the end, the court ordered the father to pay the mother costs in the amount of just under $162,000, payable forthwith.
Full text of the decision: Jurrius v. Rassuli, 2022 ONSC 6139 (CanLII)