The Ontario Family court has come down hard on a father who engaged in bad faith conduct in a child support dispute with the mother of his two children – by imposing a costs award of $50,000 against him.
In Beaudoin v. Stevens, the parents separated after six years together. The father then proceeded to resist the mother’s claim for child support at every step. Among other things, he engaged in what the mother called “ambush tactics”, which included failing to make financial disclosure, and concealing other information from her, and from the court.
After a four-day trial, the mother was successful in all but one of the six legal issues raised. Along the way she had made two offers to settle – both of which the father rejected – and then went on to be awarded even more favourable outcomes by the court.
In light of this, the mother asked the court to award her the full $66,220 that she’d spent in legal costs to get that favourable result. She bolstered her request by accusing the father of bad faith conduct, all intended to avoid his financial obligations to the children, and to bring emotional and financial harm to her.
The court readily agreed, and ordered the father to pay the mother $50,000 for her legal costs.
The court explained that under Ontario legislation and the Family Law Rules, it had discretion to make a costs award against the father that would promote several key purposes, including:
- At least partly indemnifying the mother, who was the successful litigant overall,
- Encouraging the parties to settle rather than go to trial,
- Sanctioning and discouraging the father’s inappropriate behaviour, and
- Ensuring their case is dealt with justly.
Anytime a court is asked to making a ruling on costs, it must start with the presumption that the successful party (in this case the mother) should be entitled to get her costs paid by the unsuccessful party. This is the starting point. However, that presumption gets ameliorated by the factors of proportionality, and reasonableness. The court must also look at each party’s behaviour, their settlement offers, the number of lawyers they needed, among other things.
Alongside these considerations, the Family Law Rules also contemplate that in the right circumstances the mother could get not only some costs, but her full costs. This addresses scenarios where the father has behaved unreasonably, has acted in bad faith, or has rejected an offer to settle that would have given him a better result than going to trial.
For these purposes, the “bad faith” concept comes with a fairly high threshold of egregious behavior. It is different from mere “unreasonable” behaviour; the court must be satisfied that the father had deliberate malice or an intent to inflict financial or emotional harm on the mother, or that he was intentionally duplicitious or obstructive.
Although it’s relatively rare for a court to make a “bad faith” finding, the court in Beaudoin v. Stevens had no difficulty doing so. In this case, the court said, the father had demonstrated a host of egregious misconduct, in that he:
- Failed to produce fulsome and ongoing financial disclosure,
- Was dishonest, and concealed his financial status and dealings from both the mother and the court,
- Was deliberately under-employed, in a bid to avoid his child support obligations,
- Had no intent to pay child support, and started moving his assets and life to Costa Rica,
- Intended to inflict harm on the mother and by extension the children,
- Used financial and emotional intimidation and abuse against them,
- Lacked overall credibility, and
- Engaged in other blameworthy conduct.
With this in mind, and given the gravity of the father’s misconduct, the court ruled that an award of substantial indemnity costs was warranted – meaning he was ordered to pay nearly all the legal costs actually incurred by the mother in responding to his litigation strategy. The court added that since the thrust of the main dispute involved child support, the $50,000 in costs could be enforced by the provincial Family Responsibility Office.
For the full text of the Costs decision, see:
Beaudoin v. Stevens, 2023 ONSC 5265 (CanLII), <https://canlii.ca/t/k08jr>
For the full text of the main decision on child support, see:
Beaudoin v. Stevens, 2023 ONSC 4401 (CanLII), <https://canlii.ca/t/jzdd7>
