Divorces often involve high levels of conflict, emotional stress, and contentious disputes. This environment can blur the line between legitimately asserting legal rights and acting in “bad faith.” But what exactly constitutes bad faith in Ontario family law?
The Ontario Court of Appeal clarified the standard for bad faith in the landmark case Scalia v. Scalia (2015 ONCA, 492). According to the court, bad faith involves conduct carried out with the intent to inflict financial or emotional harm, conceal relevant information, or deceive the other party or the court. Importantly, this harmful intent doesn’t need to be the sole purpose of the behaviour but must be a significant factor.
Courts consistently hold litigants to a high threshold when determining bad faith. For instance, simply failing to disclose certain assets may not necessarily meet this standard unless the non-disclosure materially impacts the fairness or outcome of the proceedings.
In the notable case of Turk v. Turk (2018 ONCA 993), the Ontario Court of Appeal upheld a decision not to set aside a separation agreement, despite the husband’s failure to disclose certain assets. The court ruled the non-disclosure did not significantly affect the fairness of the agreement, illustrating how critical the materiality of the non-disclosed information is when evaluating bad faith.
Bad faith findings are relatively rare due to this high threshold, but the implications can be significant, particularly regarding litigation costs. Courts may order the party found acting in bad faith to pay a higher proportion or even the entirety of the opposing party’s legal expenses.
Understanding these principles helps clarify what behaviours courts view as unacceptable, providing essential guidance for navigating family law disputes reasonably and effectively.
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