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When are Unreasonable Behaviours Fit Case for Increased Costs?



Sometimes, in family cases, bad faith and unreasonable behaviour are indicia for increased costs. What exactly do we mean by “bad faith and unreasonable behavior?” Increased costs means – full costs that could come to close to a 100% of the winning party’s costs, provided the winning party is able to prove that the other party indulged in unreasonable behavior and in bad faith.


Justice Jain in Rainey v. Summers, 2020 ONSC 7400 reviewed and analyzed just this point. First the definition from Justice Jain (quoting other cases and from her own analysis):

“There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. Bad faith is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involved intentional duplicity, obstruction or obfuscation.


Family law litigants are responsible for and accountable for the positions they take in the litigation. Sometimes in family law matters, the behaviour of both the parties may seem to be unreasonable at different times. They could be acting out of emotion or fear, or in reaction to or out of a lack of trust and information. These emotions and fears can cloud the determination of fault for the alleged unreasonable or bad faith conduct. In this matter, however, it was unfortunately not difficult to determine whether one party was acting in bad faith or behaving unreasonably prior the motion.”


According to the Judge, the Respondent indulged in bad faith and in unreasonable behavior in the following manner:

  1. Respondent unnecessarily kept delaying and lengthening the hearing of the motion by taking unreasonable positions, which in turn extensive communication and multiple court dates;

  2. Respondent took irresponsible position in the affidavit necessitating the Applicant to gather evidence to refute these allegations – costing more time and money;

  3. Despite the applicant offering many alternative ways to return the child, the respondent failed to return the child to the care of the applicant. Instead of cooperating, the applicant gave different excuses and said that she could not take time off work. When the applicant drove all the way from Missouri to Ontario to pick up the child, the respondent was unresponsive and uncooperative. She did not make the child available for pick up, (forcing the applicant to return immediately to Missouri without the child). Lastly, according to the applicant, after receiving my decision and order of October 13, 2020, the respondent absconded with the child. At the time of the court receiving cost submissions, the applicant did not know the child’s whereabouts. It is unknown to the court whether the child has been returned to applicant.

  4. Respondent making last minute accusations of serious abuse of the Applicant on the child, thus necessitating a further adjournment.

The rationale for awarding full costs: The Judge noted that by making allegations of abuse and obtaining and submitting hearsay letters from the applicant’s mother and sister, the respondent drove up the level of conflict and costs to the applicant. The court finds that the respondent was attempting to obstruct and/or delay the fair and just resolution of this matter. By her behaviour, the respondent has shown that she had little regard or respect for the court or achieving a just resolution.


In fixing costs, the overriding objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Based upon all of the above, the Judge determined that the applicant should have costs approaching a full recovery basis.

The Applicant had submitted a total bill of costs for $19,000. The Judge awarded costs of $15,000.


Conclusion:

Family law cases are very emotional. You need a lawyer who is level-headed, follows the Rules and the Law and guides you appropriately to avoid the pitfalls that the Respondent fell into above. You can have that confidence at Shankar Law. At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work all over Ontario, but primarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.

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