Father’s Bad Faith Actions at Trial Result in Loss of Custody and a Costs Award of $420,000

June 13, 2019

Mark Feigenbaum

A recent Ontario case shows the dangers of acting in bad faith in family law proceedings; the father’s bad behaviour at trial cost him custody of his child and an award of $420,000 to the mother.

Custody and Access Decision

The mother and father never married and had a child in 2015. They were both medical students in Ireland when the mother found out she was pregnant just before final exams. The mother was an Irish citizen and was starting a neurology residency in Buffalo in the fall of 2015, while the father, a Canadian citizen, was starting a physiatry residency in Toronto. 

The parents were separated for the majority of her mother’s pregnancy. She gave birth to their child in Buffalo in November, 2015, and the couple briefly reconciled for the next five months and then separated again. 

Since the age of one, the child had lived one week with the mother in Buffalo, and the next with her father in Toronto. In 2018, they went to court to decide all aspects of the child’s parenting schedule on a permanent basis that would provide the child with stability and consistency. 

In 2018, the court ordered that the mother would have sole custody of the child, with primary residence in Buffalo, and generous weekend and holiday residence with the father in Toronto. 

The court found that the father had made false allegations against the mother in an attempt to withhold access, restrict the child’s residence to Toronto, and insist the mother’s access to the child be supervised. In addition, the father had misled the court in order to obtain a strategic advantage in the litigation. The court stated:

“I find that [the father] was prepared to and did mislead the court under oath in the ex parte motion process. Deliberately misleading a court under oath to achieve an advantage in litigation is a serious matter, which undermines the credibility of the witness.” 

Costs Decision

In 2019, the court decided the issue of costs for the 2018 trial, which had taken place over the course of 12 days.

The mother sought her costs on a full recovery basis of $456,411. She argued that the father had conducted himself in bad faith and unreasonably, in a manner which substantially complicated the issues and evidence and resulted in high legal fees. 

The father argued that the costs incurred by the mother were “grossly punitive, excessive, unreasonable and disproportionate to the complexity of the proceeding.” 

After reviewing the father’s behaviour at trial, the court stated:

“The father has acted in bad faith throughout these proceedings. This bad faith is characterized by false allegations as to [the mother]’s role in parenting; requiring supervised access for a significant period of time based on nothing other than false allegations; and providing misleading evidence at trial with respect to a number of issues, in order to advance his claim that primary residency with [the father] was in the best interests of the child.”

The court then set out the purposes of cost orders, which include:

(1) partially indemnifying successful litigants; 

(2) encouraging settlement, 

(3) discouraging and sanctioning inappropriate behaviour by litigants, and 

(4) ensuring that cases are dealt with justly. 

The court stated that: “Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.” 

Regarding the father’s behaviour, the court described bad faith as encompassing the following elements: 

  • Behaviour shown to be carried out with intent to:

(a) inflict financial or emotional harm on the other party or other persons affected by the behaviour; 

(b) conceal information relevant to the issues; or 

(c) deceive the other party or the court;

  • Behaviour relating to the issues at stake in the case or the conduct of the case;
  • Costs incurred in relation to the issues affected by the bad faith; and
  • The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose.

Having found that the father’s actions at trial were designed to inflict emotional and financial harm to the mother and had been harmful to the daughter, the court stated:

“These examples support a finding of bad faith conduct of the father, motivated by a desire to mislead the court to gain a litigation advantage and inflict harm on the mother. 

I also found that [the father] acted unreasonably in relation to the parenting issues, in a manner which unduly complicated the litigation, and increased the costs of litigation.” 

After reviewing the costs submission, the court awarded the mother fees on a full recovery basis, both on the basis of bad faith and unreasonable conduct and on the grounds that the mother exceeded her offer to settle, in the amount of $420,000.  

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.


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