The costs endorsement in Huggins v. Hayhurst, 2025 ONSC 2823, represents a relatively rare successful application for “full” recovery costs based on bad faith conduct under Rule 24(8) of the Family Law Rules. Justice Jensen’s finding that this was “one of those rare cases where the evidence establishes that the Respondents acted in bad faith throughout the proceedings” provides crucial guidance on the evidentiary threshold required to establish bad faith in family law proceedings.
Factual Background
The underlying dispute arose from a 12 year common-law relationship between the parties. The parties maintained separate residences, with Huggins living in a home owned by Hayhurst at 51 Barnet Boulevard. Following separation, Huggins claimed unjust enrichment for domestic services provided at both residences and unpaid work performed at Hayhurst’s business..
In November 2022, Hayhurst married Anne-Marie Carswell. Shortly thereafter, he transferred 51 Barnet to Carswell for $2.00, and Carswell registered a $200,000 charge against the property. These transactions occurred while Huggins continued to reside at 51 Barnet and prior to the commencement of formal litigation.
The litigation commenced with Huggins’ Application claiming unjust enrichment and seeking various remedies including spousal support. Hayhurst brought an unsuccessful motion for summary judgment, followed by an equally unsuccessful appeal to the Divisional Court. Throughout this process, Hayhurst consistently refused to comply with court orders for financial disclosure and costs payments totaling over $25,000.
In October 2023, Justice Hooper granted Huggins’ motion to strike Hayhurst’s pleadings for non-compliance, giving him 45 days to comply with outstanding orders. When Hayhurst failed to comply, his pleadings were struck, and the matter proceeded on an uncontested basis as to most issues.
In November 2023, while Huggins was absent, Hayhurst and Carswell entered 51 Barnet, changed the locks, and barred Huggins’ entry, despite an existing court order prohibiting sale of the property or eviction of Huggins. Their removal required multiple judicial interventions and involvement of police and sheriff’s officers. During their occupation, they damaged and stole Huggins’ personal property.
Following these events, Huggins amended her Application to add Carswell as a party, claim damages for property theft and damage, and seek a restraining order against both respondents.
The Bad Faith Framework: Beyond Poor Judgment
Justice Jensen’s analysis relies extensively on the framework established in Chomos v. Hamilton, 2016 ONSC 6232, which summarized the jurisprudence on bad faith determinations:
- High threshold requirement: Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made;
- Conscious wrongdoing: 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;
- Deceptive intent: 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;
- Malice requirement: To establish bad faith the court must find some element of malice or intent to harm;
- Supreme Court definition S.(C.) v. S.(C.), 2007 CanLII 20279]: Behaviour must be shown to be carried out with 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. The requisite intent to harm, conceal or deceive does not have to be the person’s sole or primary intent, but rather only a significant part of the person’s intent; and
- Financial harm threshold: A party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification –S.(C.) v. S.(C.), 2007 CanLII 20279].
The Court’s Bad Faith Analysis
Justice Jensen found that “this is one of those rare cases where the evidence establishes that the Respondents acted in bad faith throughout the proceedings.” The court’s analysis focused on the totality of the respondents’ conduct.
The court identified the following conduct of Mr. Hayhurst as supporting the bad faith finding:
- Financial disclosure defiance: Repeatedly refused court orders to produce financial information, claiming he owed Ms. Huggins nothing despite Family Law Act requirements
- Costs order non-compliance: Refused to pay court-ordered costs following unsuccessful motion and Divisional Court appeal, demonstrating disrespect for court orders
- Fraudulent property transfer: Despite court order prohibiting sale or encumbrance, transferred 51 Barnet to new spouse for $2 and registered $200,000 charge, with new spouse admitting actions were taken “with the express purpose of putting the property beyond Ms. Huggins’ reach”
- Strategic mortgage default: Stopped mortgage payments to force foreclosure and Ms. Huggins’ eviction, forcing her to engage additional counsel to assume mortgage
- Property invasion: Broke into Ms. Huggins’ home and occupied it until sheriff’s enforcement removed them, requiring legal action that increased her expenses and was “clearly intended to intimidate and upset her”
- Property damage and theft: Damaged and stole personal property during occupation, forcing amendment of application to add new spouse as party
- Workplace and residential intimidation: Threatened Ms. Huggins at workplace and engaged in intimidating behavior at residence, clearly attempting to force withdrawal of legal action
Based on this conduct, Justice Jensen concluded that the respondents’ actions demonstrated “malice and intent to harm” as required for a bad faith finding under the S.(C.) v. S.(C.) framework.
Distinguishing Huggins from Failed Bad Faith Applications
The success of the bad faith application in Huggins can be contrasted with the typical unsuccessful application, which often relies on:
- Single instances of poor judgment or tactical decisions
- Conduct that, while unreasonable, lacks evidence of malicious intent
- Behavior that can be explained by legitimate litigation strategy
- Actions that demonstrate poor legal advice rather than deliberate misconduct
The Huggins decision succeeded because it demonstrated systematic, escalating misconduct with admitted intent to defeat the claim and clear evidence of malice.
Evidentiary Requirements: Documentation and Proof
The successful bad faith application required comprehensive documentation including:
- Chronological record of non-compliance with specific court orders;
- Direct admissions of intent to defeat the claim;
- Third-party corroboration through police and sheriff involvement;
- Multiple judicial interventions establishing pattern of defiance; and
- Financial impact documentation showing forced additional legal work.
Practice Implication: Bad faith applications require systematic evidence gathering throughout the litigation, not post-hoc attempts to characterize conduct as malicious.
The Intent Requirement: Subjective vs. Objective Analysis
The court’s analysis demonstrates that bad faith requires proof of actual subjective intent to harm, not merely conduct that objectively causes harm. Mr. Hayhurst’s new spouse’s admission that the property transfers were designed to defeat the claim provided crucial subjective evidence that distinguished this case from situations where harmful conduct might be explained by other motives.
Threshold Analysis: When Does Misconduct Become Bad Faith?
The decision provides guidance on the quantum of evidence required to cross the bad faith threshold:
- Insufficient: Single instances of non-compliance, poor tactical decisions, or conduct explainable by incompetence or poor legal advice; and
- Sufficient: Systematic pattern of misconduct with evidence of malicious intent and direct admissions of intent to harm or defeat claims.
Costs Consequences: The Rule 24(8) Framework
The full recovery costs award of $89,651.81 demonstrates the severe financial consequences of established bad faith. Under Rule 24(8) of the Family Law Rules, courts are authorized to grant “costs on a full recovery basis” where a party has acted in bad faith—the family law equivalent of what civil litigation terms “full indemnity” costs.
The court’s analysis confirms that Rule 24(8) costs are designed to be punitive and deterrent, not merely compensatory. However, even in bad faith cases, courts maintain oversight to ensure reasonableness. Justice Jensen reduced the requested $109,651.81 by $20,000 based on specific billing deficiencies:
- Travel Time Exclusions: Following Beaver v. Hill, 2018 ONCA 840, the Court of Appeal’s disapproval of including travel expenses in costs bills resulted in reductions where counsel included travel time without clear justification.
- Task Allocation Issues: Reductions were made for tasks performed by senior counsel that should have been delegated to junior staff, such as legal research and document uploading to Case Center and the family portal.
- Settlement Conference Costs: Under Rule 17(18) of the Family Law Rules, costs are not typically awarded for settlement conferences unless exceptional circumstances exist (party unprepared, required documents not served, or conduct contributing to unproductive conferences). The court found no evidence of such exceptional circumstances warranting a costs recovery.
These reductions demonstrate that even full recovery awards remain subject to reasonableness analysis. The proportionality considerations under Rule 24(11) become secondary when bad faith is established, but courts will still scrutinize costs bills to ensure proper billing practices and appropriate task allocation.
Strategic Implications for Practice
For Applicant Counsel
- Document systematically from the outset, anticipating potential bad faith application
- Preserve admissions of intent to defeat claims or harm opposing parties
- Seek interim orders that create clear compliance obligations
- Involve authorities when conduct crosses into criminal territory
For Respondent Counsel
- Recognize early warning signs of client conduct that could support bad faith findings
- Advise clearly regarding consequences of non-compliance and intimidation
- Consider withdrawal when clients engage in systematic misconduct
- Document advice given regarding proper litigation conduct
Precedential Impact
The decision provides the most comprehensive analysis of bad faith in family law since Chomos v. Hamilton, offering practitioners a detailed evidentiary roadmap for both establishing and defending against bad faith allegations.
The systematic approach to analyzing intent to harm, combined with the detailed documentation requirements, will likely influence how bad faith applications are pleaded and adjudicated going forward.
Conclusion
Huggins v. Hayhurst demonstrates that while bad faith findings remain rare in family law, systematic misconduct with evidence of malicious intent will result in severe costs consequences under Rule 24(8). The decision provides crucial guidance on the evidentiary threshold required to establish bad faith and the devastating financial impact of full recovery costs awards.
For practitioners, the case emphasizes the importance of recognizing when conduct crosses from poor judgment into bad faith territory, and the critical role of systematic documentation in establishing the requisite intent to harm. The $89,651.81 full recovery costs award serves as a powerful reminder that bad faith conduct in family law will result in financial consequences that far exceed any potential tactical advantage.
Let’s continue to elevate the practice of family law in Ontario!
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Cheryl Goldhart is a Mediator and Arbitrator who can make a difference in resolving your family disputes.
- Four Decades of Specialized Family Law Practice: Cheryl brings a wealth of experience spanning nearly 40 years dedicated exclusively to family law.
- Masters Degree in Counselling: Her Masters Degree in Counselling informs her uniquely empathetic approach to each case.
- Certified Family Law Specialist: The Law Society of Ontario has certified Cheryl as a Family Law Specialist, recognizing her expertise in the area.
- Accreditation as a Mediator by the OAFM: Cheryl’s expertise is reflected in her accreditation from the Ontario Association for Family Mediation.
- Designated ADR Professional by Ontario’s ADR Institute: As a highly respected arbitrator, Cheryl’s designation reflects her recognized expertise in family law arbitration.
- Recipient of Numerous Awards and Honors: Among Cheryl’s many awards, honours and accolades is the prestigious Award for Excellence in Family Law from the Ontario Bar Association.
Legal Disclaimer: See Privacy Policy
Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.
Huggins v. Hayhurst: The Cost of Bad Faith – Full Recovery Costs Under Rule 24(8)
By Cheryl Goldhart
Founder and Principal of Goldhart Law and Goldhart Mediation & Arbitration.
The costs endorsement in Huggins v. Hayhurst, 2025 ONSC 2823, represents a relatively rare successful application for “full” recovery costs based on bad faith conduct under Rule 24(8) of the Family Law Rules. Justice Jensen’s finding that this was “one of those rare cases where the evidence establishes that the Respondents acted in bad faith throughout the proceedings” provides crucial guidance on the evidentiary threshold required to establish bad faith in family law proceedings.
Factual Background
The underlying dispute arose from a 12 year common-law relationship between the parties. The parties maintained separate residences, with Huggins living in a home owned by Hayhurst at 51 Barnet Boulevard. Following separation, Huggins claimed unjust enrichment for domestic services provided at both residences and unpaid work performed at Hayhurst’s business..
In November 2022, Hayhurst married Anne-Marie Carswell. Shortly thereafter, he transferred 51 Barnet to Carswell for $2.00, and Carswell registered a $200,000 charge against the property. These transactions occurred while Huggins continued to reside at 51 Barnet and prior to the commencement of formal litigation.
The litigation commenced with Huggins’ Application claiming unjust enrichment and seeking various remedies including spousal support. Hayhurst brought an unsuccessful motion for summary judgment, followed by an equally unsuccessful appeal to the Divisional Court. Throughout this process, Hayhurst consistently refused to comply with court orders for financial disclosure and costs payments totaling over $25,000.
In October 2023, Justice Hooper granted Huggins’ motion to strike Hayhurst’s pleadings for non-compliance, giving him 45 days to comply with outstanding orders. When Hayhurst failed to comply, his pleadings were struck, and the matter proceeded on an uncontested basis as to most issues.
In November 2023, while Huggins was absent, Hayhurst and Carswell entered 51 Barnet, changed the locks, and barred Huggins’ entry, despite an existing court order prohibiting sale of the property or eviction of Huggins. Their removal required multiple judicial interventions and involvement of police and sheriff’s officers. During their occupation, they damaged and stole Huggins’ personal property.
Following these events, Huggins amended her Application to add Carswell as a party, claim damages for property theft and damage, and seek a restraining order against both respondents.
The Bad Faith Framework: Beyond Poor Judgment
Justice Jensen’s analysis relies extensively on the framework established in Chomos v. Hamilton, 2016 ONSC 6232, which summarized the jurisprudence on bad faith determinations:
The Court’s Bad Faith Analysis
Justice Jensen found that “this is one of those rare cases where the evidence establishes that the Respondents acted in bad faith throughout the proceedings.” The court’s analysis focused on the totality of the respondents’ conduct.
The court identified the following conduct of Mr. Hayhurst as supporting the bad faith finding:
Based on this conduct, Justice Jensen concluded that the respondents’ actions demonstrated “malice and intent to harm” as required for a bad faith finding under the S.(C.) v. S.(C.) framework.
Distinguishing Huggins from Failed Bad Faith Applications
The success of the bad faith application in Huggins can be contrasted with the typical unsuccessful application, which often relies on:
The Huggins decision succeeded because it demonstrated systematic, escalating misconduct with admitted intent to defeat the claim and clear evidence of malice.
Evidentiary Requirements: Documentation and Proof
The successful bad faith application required comprehensive documentation including:
Practice Implication: Bad faith applications require systematic evidence gathering throughout the litigation, not post-hoc attempts to characterize conduct as malicious.
The Intent Requirement: Subjective vs. Objective Analysis
The court’s analysis demonstrates that bad faith requires proof of actual subjective intent to harm, not merely conduct that objectively causes harm. Mr. Hayhurst’s new spouse’s admission that the property transfers were designed to defeat the claim provided crucial subjective evidence that distinguished this case from situations where harmful conduct might be explained by other motives.
Threshold Analysis: When Does Misconduct Become Bad Faith?
The decision provides guidance on the quantum of evidence required to cross the bad faith threshold:
Costs Consequences: The Rule 24(8) Framework
The full recovery costs award of $89,651.81 demonstrates the severe financial consequences of established bad faith. Under Rule 24(8) of the Family Law Rules, courts are authorized to grant “costs on a full recovery basis” where a party has acted in bad faith—the family law equivalent of what civil litigation terms “full indemnity” costs.
The court’s analysis confirms that Rule 24(8) costs are designed to be punitive and deterrent, not merely compensatory. However, even in bad faith cases, courts maintain oversight to ensure reasonableness. Justice Jensen reduced the requested $109,651.81 by $20,000 based on specific billing deficiencies:
These reductions demonstrate that even full recovery awards remain subject to reasonableness analysis. The proportionality considerations under Rule 24(11) become secondary when bad faith is established, but courts will still scrutinize costs bills to ensure proper billing practices and appropriate task allocation.
Strategic Implications for Practice
For Applicant Counsel
For Respondent Counsel
Precedential Impact
The decision provides the most comprehensive analysis of bad faith in family law since Chomos v. Hamilton, offering practitioners a detailed evidentiary roadmap for both establishing and defending against bad faith allegations.
The systematic approach to analyzing intent to harm, combined with the detailed documentation requirements, will likely influence how bad faith applications are pleaded and adjudicated going forward.
Conclusion
Huggins v. Hayhurst demonstrates that while bad faith findings remain rare in family law, systematic misconduct with evidence of malicious intent will result in severe costs consequences under Rule 24(8). The decision provides crucial guidance on the evidentiary threshold required to establish bad faith and the devastating financial impact of full recovery costs awards.
For practitioners, the case emphasizes the importance of recognizing when conduct crosses from poor judgment into bad faith territory, and the critical role of systematic documentation in establishing the requisite intent to harm. The $89,651.81 full recovery costs award serves as a powerful reminder that bad faith conduct in family law will result in financial consequences that far exceed any potential tactical advantage.
Let’s continue to elevate the practice of family law in Ontario!
Connect with us on LinkedIn.
Cheryl Goldhart is a Mediator and Arbitrator who can make a difference in resolving your family disputes.
Legal Disclaimer: See Privacy Policy
Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.