ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JENNIFER MILLARD
T. Henderson, for Applicant
Applicant
- and -
ADAM MILLARD
Unrepresented
Respondent
HEARD: in writing at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton
Endorsement on Costs
1By endorsement dated April 20, 2026, I granted the applicant a final order for various relief following an uncontested trial based on affidavit evidence.
2What remains to be determined is the quantum of costs payable by the respondent. The applicant seeks full recovery costs in the total amount of $33,693.25. I sought written submissions from the applicant on the scale of costs.
3The applicant seeks full recovery costs based on "bad faith" conduct. The bad faith conduct is the failure of the respondent to cooperate in any way in this proceeding which required the applicant to procced to trial. He sent emails saying that he would not respond.
4The issue is whether the failure to cooperate is bad faith.
5Courts have stated the following:
Kumar v. Nash1:
[12] Subrule 24 (8) of the rules states that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
[13] Subrule 24 (8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. See: Cozzi v. Smith, 2015 ONSC 3626; Scipione v. Del Sordo, 2015 CarswellOnt 14971 (Ont. SCJ).
[14] 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. See: S.(C.) v. S. (M.) (2007), 2007 CanLII 20279 (ON SC), 38 R.F.L. (6th) 315 (Ont. SCJ); Stewart v. McKeown, 2012 ONCJ 644.
[15] 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 involves intentional duplicity, obstruction or obfuscation. See: Scipione, supra. [Emphasis added.]
K.K. v. M. M.2:
[31] Proof of bad faith requires meeting a high threshold of egregious behaviour. It also requires proof of malice or intent to harm.
[32] There is a difference between bad faith and unreasonable litigation behaviour. Even seriously unreasonable behaviour will not amount to bad faith unless it is carried out with the intent to inflict financial or emotional harm on the other party, to conceal information relevant to the issues, or to deceive the other party or the court. A finding of bad faith is therefore rarely made: S.(C.) v. S.(M.), 2007 CanLII 20279 (ON SC), at paras. 17, 20, aff’d 2010 ONCA 196; Harrison v. Harrison, 2015 ONSC 2002; Chomos v. Hamilton, 2016 ONSC 6232, at paras. 43, 46-47 and 49; Cozzi v. Smith, 2015 ONSC 3626, at para. 28; Craig v. Craig, 2021 ONSC 5761, at para. 35; and Scalia v. Scalia, 2015 ONCA 492, at para. 68. [Emphasis added.]
Hughes v. Hughes3:
[7] The court may issue an elevated costs award over and above partial indemnity where one party’s conduct has been unreasonable. Unreasonable conduct includes conduct that is: 1) disrespectful of other participants or the court; 2) unduly complicates the litigation; or 3) increases the costs of litigation: Harper v Smith, 2021 ONSC 3420, at para 3, citing Beaver v Hill, 2018 ONSC 3352 (“Beaver v Hill (ONSC)”), at para 51, rev’d on other grounds, 2018 ONCA 840. Poor litigation decisions and advancing unreasonable claims or filing meritless and incomplete pleadings may also justify an elevated costs award: Ali Hassan v Abdullah, 2023 ONCJ 186, at para 61; Beaver v Hill (ONSC), at para 51.
[8] If a party’s conduct amounts to bad faith, the court may order costs on a full recovery basis: 24(8). Bad faith, however, is a high threshold. It 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 involves intentional duplicity, obstruction or obfuscation: see: Scipione v Scipione 2015 ONSC 5982, at para. 96. [Emphasis added.]
6The applicant relied on Lekic v. Ismail4 which considered the costs of an uncontested trial. The Court stated:
[90] I find that the husband in this case was unreasonable and engaged in bad faith. His refusal to participate in these proceedings certainly increased the wife’s legal fees. She was required to pay for an prepare pleadings, to which he did not respond; she had counsel prepare and serve him with a Request for Information, to which he did not respond. She was then forced to bring an urgent motion to obtain passports for the children, because of his failure to respond to her. Further, she was put to the cost of preparing materials for this uncontested trial. Accordingly, I order the husband to pay the wife’s cost, fixed in the sum of $7,032.984.
7I begin by noting that the material filed by counsel for the uncontested trial was excellent and very comprehensive and included two factums, books of authorities and trial aids.
8I also acknowledge that failure to cooperate increased the costs of the applicant. However, the failure to cooperate does not meet the high threshold required for bad faith, that is intentional duplicity, obstruction or obfuscation. I fix the costs payable by the respondent to the applicant in the amount of $15000 plus HST plus disbursements of $1104.05.
The Hon. Mr. Justice W. D. Newton, R.S.J.
Released: May 12, 2026
CITATION: Millard v. Millard 2026 ONSC 2792
COURT FILE NO.: FS-25-0061-00
DATE: 2026-05-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JENNIFER MILLARD
Applicant
- and -
ADAM MILLARD
Respondent
ENDORSEMENT ON COSTS
Newton R.S.J.
Released: May 12, 2026