“In Scalia v. Scalia, 2015 ONCA 492 (CanLII) the Ontario Court of Appeal confirmed that the legal test for bad faith in the family law context as set out by Perkins J.in S.(C) v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.).
a. In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.
b. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith.
c. 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.
d. At some point, 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.
e. In short, the essential components are intention to inflict harm or deceive.”