What is Bad Faith Mediation?

You arrive at the mediation table with a folder full of documents, a heart full of hope, and a genuine desire to move forward. You’ve spent weeks preparing, hoping this process will finally bring peace to your family. But as the hours tick by, you realize the person across from you isn't there to find a solution. They are withholding financial statements, making circular arguments, or perhaps using the session as a "fishing expedition" to gather information for a future court date.

It feels like a betrayal of the process. You might wonder: Is this allowed? Can they really just show up and refuse to settle?

In Ontario family law, mediation is built on the foundation of "good faith." While most people enter the room intending to resolve their disputes, some use it as a tactical weapon. When this happens, the legal system has specific, and often severe, consequences for those who act in "bad faith."

What Exactly is "Bad Faith" in Mediation?

The term "bad faith" is thrown around often in heated divorces, but in a legal context, it has a very specific and high threshold. It is not simply being difficult, having a "bad attitude," or being a tough negotiator.

In Ontario, bad faith is defined as intentional conduct designed to deceive, conceal information, or cause deliberate harm to the other party. It’s not a mistake or a lapse in judgment; it’s a conscious choice to undermine the fairness of the legal process.

As established in Beaudoin v. Stevens, 2023 ONSC 5265, the court looks for "intentional duplicity." This means one person is pretending to participate for one reason (like following a court order to mediate) while actually pursuing an entirely different, hidden agenda, such as stalling for time or hiding assets.

The Financial "Stick": Rule 24(8) and Full Recovery Costs

The Ontario Family Law Rules do not take bad faith lightly. Rule 24(8) is the primary mechanism the court uses to punish this behaviour.

Typically, when a court decides who should pay legal costs, they aim for "partial indemnity", meaning the winning side gets a portion of their legal fees covered. However, if a judge finds that a party has acted in bad faith, Rule 24(8) dictates that the court must order:

1. Full Recovery Costs: The offending party must pay all of the other person’s reasonable legal fees.

2. Immediate Payment: These costs are often payable right away, rather than at the end of the entire case.

This is a significant financial deterrent. It shifts the entire financial burden of the litigation onto the person who tried to manipulate the system.

Real-Life Consequences: Learning from the Courts

To understand how high the stakes are, we can look at recent Ontario cases where the court stepped in to address bad faith conduct.

G.P.R. v. A.K., 2026 ONSC 409

In this recent and high-profile case, the father’s conduct was described as a masterclass in bad faith. He didn't just disagree; he engaged in a campaign to denigrate the mother, made unfounded allegations, and brought "mid-trial motions" designed to derail the proceedings.

The court didn’t just rule against him; it awarded $220,000 in full recovery costs. The judge’s message was clear: using the legal system to inflict emotional and financial harm will not be tolerated.

Unreasonable vs. Bad Faith: Knowing the Difference

It is important to distinguish between someone who is being "unreasonable" and someone acting in "bad faith." This distinction matters because it changes the size of the cost award.

• Unreasonable Conduct: This might include refusing to accept a very fair settlement offer, being unnecessarily stubborn, or dragging out a simple issue. In these cases, a court might award "elevated costs," but usually not the full 100%.

• Bad Faith: This is the "nuclear option." It requires proof of an improper motive.

A great example of this nuance is found in Barrett v. Watson, 2024 ONSC 1118. The court considered whether a party's refusal to participate in mediation was in bad faith. Generally, walking away from the table or refusing to attend is considered "unreasonable," but it only becomes "bad faith" if there is a demonstrated intent to deceive or a "dishonest purpose."

Essentially, you are allowed to be difficult, but you are not allowed to be a liar. We often discuss the importance of keeping the focus on the future rather than the past, as seen in our guide on why rehashing old fights costs you.

One of the most frequently cited Ontario cases on the definition of bad faith, Scipione v. Scipione, 2015 ONSC 5982, involved a husband who took bad faith beyond mere non-disclosure and into outright retaliation. The husband provided untruthful information about his employment status, and when the opposing counsel pressed him on the discrepancies, he filed a meritless complaint against the lawyer with the Law Society.

Justice Pazaratz found that this conduct crossed the line from difficult or unreasonable behaviour into genuine bad faith. The husband was ordered to pay $70,000 in full recovery costs, payable immediately.

The case is widely cited for establishing that bad faith requires more than poor judgment or stubbornness; it requires a conscious intent to deceive, obstruct, or inflict harm. Filing a frivolous complaint against counsel, lying about employment, and using procedural tactics to punish the other side all fit squarely within that definition.

How Mediation Still Works (Even with a Difficult Party)

If you suspect the other party is entering mediation in bad faith, it’s easy to feel like the process is a waste of time. However, a skilled mediator and the structure of Alternative Dispute Resolution (ADR) can often manage these dynamics.

1. Screening: Every mediation starts with a screening process. This is where a mediator assesses if there is a power imbalance or if one party is likely to act in bad faith. If the risks are too high, mediation may not proceed until safeguards are in place.

2. Parenting Coordination: For high-conflict situations where bad faith is a recurring theme, a Parenting Coordinator (PC) can be appointed. A PC has the authority to make binding decisions (awards) if the parents can’t agree, preventing one party from "stonewalling" the process.

3. Mediation-Arbitration (Med-Arb): This is a powerful tool. If mediation fails because one party isn't engaging, the mediator switches hats and becomes an arbitrator. They can then make a final, legally binding decision based on the evidence, effectively ending the "bad faith" delay tactics.

Even in the age of technology, having a human professional who can spot these behaviours is vital. You can read more about why AI can’t replace a human mediator for exactly this reason.

Protecting Yourself from Bad Faith

If you are worried that your spouse or former partner is not being honest, there are steps we can take together:

• Document Everything: Keep a clear record of missed meetings, refused disclosure, and contradictory statements.

• Focus on Full Disclosure: Ensure your own "hands are clean." By providing full and transparent financial disclosure, you make the other party's lack of transparency stand out even more to a judge.

• Use the Right Process: If there is a history of deception, we may recommend a more structured ADR process, like arbitration, where there are clear consequences for non-compliance.

Moving Toward a Resolution

Dealing with a party who refuses to play by the rules is exhausting. It can feel like you are fighting an uphill battle just to get the most basic information.

However, the law in Ontario is increasingly protective of the integrity of the mediation process. With the threat of Rule 24(8) and the high costs of bad faith findings, there is a strong incentive for parties to eventually come to the table with a genuine desire to settle.

At Absolute Dispute Resolution, we are here to guide you through these complexities. Whether you are dealing with a difficult negotiation or looking for a way to break a stalemate, we provide the calm, professional support you need to reach the finish line.

If you are feeling stuck or worried about the "bad faith" tactics of the other side, please reach out. We can discuss how to structure your mediation or parent coordination to protect your interests and your peace of mind.