Author: dawi

“Orders for security for costs are an exercise in judicial discretion based on circumstances specified by section 24(13) of the Family Law Rules which reads as follows:

ORDER FOR SECURITY FOR COSTS

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. 1. 1. 1. 1.    A party ordinarily resides outside Ontario.
            2.    A party has an order against the other party for costs that remains unpaid, in the same case or another case.
            3.    A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
            4.    There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
            5.    A statute entitles the party to security for costs.  O. Reg.114/99, r. 24(13).

In Izyuk v. Bilousov, 2015 ONSC 3684 (S.C.J.), Pazaratz J. noted the purpose of an order for security of costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred.   It requires the court to apply the following analysis:

a.   The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.

b.   If the onus is met, the court has discretion to grant or refuse an order for security.

c.   If the court orders security, it has wide discretion as to the quantum and means of payment of the order.  Clark v Clark2014 ONCA 175 (CanLII).

d.   The order must be “just” and be based on one or more of the factors listed in subrule 24(13).  Hodgins v Buddhu[2013] O.J. No. 1261 (OCJ).

Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims: Izyuk v. Bilousov, supra, at para. 37. They should be used sparingly and carefully because they may well have the effect of barring a party from access to the court process for a proper review of existing orders – something, for example, to which a party is entitled respecting child support orders if there has been a change in circumstances. See: Gauthier v. Gauthier, 2019 ONCA 722.

In most instances the merits of a case should not be determined by a party’s inability to post security for costs.  Bragg v. Bruyere, 2007 ONCJ 515.  But litigants should not be permitted to use the court as a playground.  Court proceedings are expensive, time consuming, and disruptive. They should not be launched frivolously or without due regard to the impact on the responding party. McGraw v Samra, 2004 ONCJ 164 (CanLII), [2004] O.J. No. 3610 (OCJ).

The mere satisfaction of the criteria in Rule 24(13) is not sufficient to merit an order for security for costs.  It must also be just to make the order and generally in family law proceedings courts do not wish to see proceedings determined on their merits by an inability to post security for costs. Hodgin v. Buddhu, [2013] O.J. No.1262 (O.C.J.)

When proceeding under Rule 24(13) the opposing party need only prove that there is “good reason to believe” the action is a waste of time or is a nuisance. In the case of Wreggbo v. Vinton, 2013 ONCJ 250, 2013 CarswellOnt 5833, Justice Katarynych stated at paragraph 11:

In relation to the latter basis, the subrule allows either a showing of good reason to believe that there is either nuisance afoot or a wasting of the court’s time.   As a matter of common sense, a nuisance claim is one so devoid of merit that it is a waste of the court’s time.  It wholly undercuts the primary objective of the Rules to allow a “nuisance claim” that is by its nature a waste of time, to go forward to trial with a security for costs order “hobbling” the trial court, as Superior Court Justice Quinn characterized the dilemma in the Stefureak case. See Stefureak v. Chambers, 2005 Canlii 7890 (ON SC). [emphasis omitted]

Further, the court in Wreggbo noted that whether an order for security for costs is “just” in any particular case is an objective determination, based on the record before the court, set in the context of the procedural law established by the Rules and the substantial law governing the claims for which the security is sought (para.11). The court stated that whether a claim has merit is not a litigant’s “take my word for it” type of consideration but rather that:

[13]  Merit is unfolded – or not – in the quality of the disclosure of information provided about the claim to the other party.  It is an information sharing that, as part of a party’s “just dealing” responsibility, positions the other party to make a responsibly informed response to the claim.  It is an information-sharing that flows into the judicial conferencing process, as a matter of “just dealing” to inform the court’s opinion on the merits of competing claims, and the means by which the parties make visible their attempt to work with the case management judge to meet the primary objective of the Rules.

[14]      Withholding of information reasonably needed by the other party or the court itself to take a responsible stance on the likely merits of any particular claim is unjust, within the meaning of the Rules.

[15]      It skids the claim into the mischief zone. Once in the mischief zone, it is nuisance and wastes not just the court’s time and resources, but also the time and resources of the other party.

….

[20]        So it is that the state of information disclosure between the parties and to the case management court over the course of the litigation is relevant to the adjudication of a security for costs motion. The underlying question is whether the claim needs a trial.”

Krzewina v. Beaumont, 2021 ONCJ 351 (CanLII) at 24-30

“At the outset of trial, Vahid amended his pleading to seek a declaration that two documents he signed acknowledging that Halime is entitled to ownership of the Ellis Property were domestic contracts that must be set aside pursuant to ss. 56(4)(a) and 56(4)(b) of the Family Law Act, R.S.O. 1990, c. F.3, and/or by reason of undue influence, duress, and unconscionability. Vahid’s counsel argued that if these agreements are set aside, then there would have to be a reference on the issue of equalization with respect to the Ellis Property with financial statements, etc. Halime consented to this amendment, preserving her right to argue that this claim was statute barred.

As well, in closing submissions, Vahid raised for the first time that the parties were engaged in a joint family enterprise whereby they agreed to share the Ellis Property (while still contesting any entitlement by Halime to the Deerfield Property). When I pressed his counsel about the illogic of this singular claim over the Ellis Property by way of joint family enterprise, his alternative argument was that the joint family enterprise could also include the Deerfield Property. When I pressed him still based upon the case law and the evidence before me that there were multiple properties held solely by Vahid not shared with Halime, as a third alternative argument, Vahid’s counsel argued that all properties that each party accumulated over the course of the relationship could be taken into account as part of a joint family enterprise. This would ultimately necessitate further productions, the exchange of financial statements, discovery and then a further proceeding to address the issue of the distribution of such assets.

None of this was ever pleaded despite the amendments at the outset of trial. This was never mentioned in the Trial Management Report nor at the case management conference I held the Friday before the trial commenced.

As I will explain, the late notice of this claim is unfair. Had this been pleaded from the outset, this action could have been pursued by Halime differently. She could have requested and been entitled to disclosure of documentation regarding all of the properties that each of the parties accumulated during their relationship and then ended up with at the end of the relationship. There could have been discovery on this issue to address whether Halime or Vahid unfairly ended up with a disproportionate share of any accumulated assets, a factor that is central in the case law concerning joint family enterprise relied upon by Vahid.

There are many criticisms one could make about Vahid’s approach, including that it constitutes trial by ambush. After seven years of litigation and a trial, the idea that Vahid should get another kick at the can and another hearing to address a late-breaking joint family enterprise theory is also an abuse of process. The courts do not have the time nor the resources to provide these two parties with another hearing because Vahid has now finally recognized, as will be seen, that both his claim and defence herein are highly problematic and that he needs a new theory. And he sought to do this, again, without having provided any information about his own financial circumstances and the various properties that he held outright during the relationship that Halime has never shared in nor made any claims to.”

          Aghdasi v. Asiyaban, 2024 ONSC 3472 (CanLII) at 6-10

“The law prior to Bill C-78 was that children should have maximum contact with both parents if it was consistent with the child’s best interests: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. This even applied when the children were reluctant to see a parent, which is not the case here.

Then as now, the Court is tasked with viewing what is in the best interests of the child, not the parents.  The maximum contact principle was mandatory, but not absolute.  The maximum contact principle only obliged the judge to respect it to the extent that such contact was consistent with the child’s best interests; if other factors showed that it would not be in the child’s best interests, the court could restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. and Casselman v. Noonan, 2017 ONSC 3415.

Maximum contact or “maximum parenting time”, although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time.  Rather, in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Our Court of Appeal, in upholding the decision of Chozik J. in Knapp v. Knapp, affirmed the principle that a child-focused approach to achieve as much parenting time as is possible with each parent is the objective of the maximum contact principle. It may end up being equal time.  It may not. Each family is different, and the principle is a guide set out to benefit children:  Knapp v. Knapp, 2021 ONCA, per Benotto J.A.”

          Theriault v. Ford, 2022 ONSC 3619 (CanLII) at 17-20

“There is no definition of “habitual residence” in the Hague Convention; it is a question of fact to be determined. The Supreme Court of Canada, in Balev, has provided some much-needed guidance. It has indicated that a “hybrid approach” must be taken in determining where a child habitually resided, which focuses not only on the parents’ intentions or the child’s circumstances but requires the judge to look at all relevant considerations arising from the facts of the case at hand:  Balev, at para. 42.

In adopting the hybrid approach, the application judge should determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the retention. The judge should consider all the relevant links and circumstances, including the child’s links, in this case, to both Mexico and Ontario, and the circumstances of the move to Mexico. The judge should consider the duration, regularity, conditions, and reasons for the child’s stay in Mexico, as well as the child’s nationality. No single factor should dominate the analysis, but the judge should consider the entirety of the circumstances: Balev, at paras. 43-44.

The age of the child at issue is also relevant. If a child is an enfant, then the child’s environment is determined by reference to those with whom the child lives and by whom the child is looked after and cared for. When the child is an infant, the circumstances of the parents, and their intentions, are important. The parental intention though is not determinative, but it can be an indicator capable of complementing a body of other consistent evidence. It depends on the circumstances of the case: Balev, at para. 45; Ludwig, at para. 32.

In Knight v. Gottesman, 2019 ONSC 4341, 147 O.R. (3d) 121, Justice Shore reviewed the decision of the Nova Scotia Court of Appeal in Beairsto v. Cook, 2018 NSCA 90, 17 R.F.L. (8th) 1, which was released after Balev. In Beairsto, the mother was the child’s only caregiver at the relevant time. The appellate court found that the Mother’s place of residence dictated the child’s place of residence. The Court of Appeal considered that the mother had no family or support network in Washington, which was the competing jurisdiction. It also considered that she was only in Washington on a six-month visitor’s visa. They found that there was no permanency to her move to Washington. In these circumstances, the court found that Nova Scotia was the habitual residence of the child.”

            Routley v. Palomera, 2022 ONSC 3557 (CanLII) at 64-67

“The [Family Responsibility and Support Arrears Enforcement Act, 1996,] provides for the enforcement of support orders using means beyond those available to enforce orders for the payment of money in purely civil proceedings and gives support orders priority over such orders.  Section 1(1) of the Act defines a support order as follows:

1 (1) In this Act,

“support order” means a provision in an order made in or outside Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

…

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance,

On behalf of Ms. Rutledge, Ms. Prescott makes a procedural argument that I believe should be dealt with before turning to the substantive arguments. She submits that Mr. Taillefer should not be allowed to raise the applicability of the Act because he never sought that relief in any notice of motion.

I am unable to accept this argument. While it is true that neither the contempt nor the breach motion sought an order that costs be enforced as support, they did seek costs. Where costs clearly do relate to support, there is no requirement of which I am aware, nor was I referred to any by counsel for Ms. Rutledge, that the party to whom costs are awarded must plead the Act in order to claim the benefit of it.”

          Rutledge and Taillefer, 2024 ONSC 3359 (CanLII) at 6

“When interpreting the Final Order, the court must ascertain the mutual intentions of the parties when they entered into this consent agreement, as determined by the wording of the Final Order.  Absent ambiguity, the court will give plain and ordinary meaning to the words chosen by the parties. The material provisions must be interpreted in harmony with the other provisions in the Final Order. In this case, the court will interpret the Final Order along the same principles of contractual interpretation as would be used for a contract or, more particularly, a settlement agreement.  This is because the parties prepared the terms of the Final Order to reflect the terms of their full and final settlement agreement. Accordingly, I shall approach the issue of interpretation using the same framework the courts use for contractual interpretation within the family law context: see; e.g.:  Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494; Consolidated-Bathurst v. Mutual Boiler, 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888.”

          Duffy v. Duffy, 2024 ONSC 3339 (CanLII) at 26

“Courts have traditionally discouraged the variation of interim orders on an interim basis pending trial unless the circumstances are urgent.  The preferable approach is to get the matter on to trial.  However, that is not to say that it can never be done.  For example, very recently in Michael v. Michael, 2024 ONSC 3107, Coats J. changed a spousal support order made earlier in the case, in advance of trial.  In so doing she found that the payor had established a strong prima facie case for a material change in circumstances, because there had been a significant decrease in the payor’s income and an increase in the recipient’s.  She found that neither had significant assets or debts, that continuing the Order would cause financial hardship as both parties were in similar financial circumstances, and the support order was almost all of the payor’s current income.  She found that it would be “incongruous and absurd” to continue the spousal support Order, as the recipient’s income was higher than the payor’s, and the payor did not have the capacity to pay:  see ¶ 10-18.”

D.N. v. A.N., 2024 ONSC 3330 (CanLII) at 75

“Although not specifically provided for in the Family Law Act, R.S.O. 1990, c. F.3, this court has jurisdiction to award an advance against equalization:  Zagdanski v. Zagdanski, 2001 CanLII 27981, at paras. 22-38.

Before such an advance is ordered, I should consider the following:

a.   Whether there is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

b.   Whether there is some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;

c.   Whether there is a reasonable requirement for the funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action; and

d.   Whether there are other circumstances such that fairness requires some relief for the moving party, such as a delay in the action, deliberate or not, prejudicing the moving party by, for example, running of their costs.

See Zagdanski, at para. 39; Firestone v. Pfaff, 2012 ONSC 4909, at para. 24.”

Parente v Parente, 2023 ONSC 3502 (CanLII) at 10-11

“There are too many litigants coming to court and demanding that the only way to respect Canada’s responsibilities as a signatory to the United Nations Convention on the Rights of the Child, Article 12, is for the judge to order that an independent professional assessor become involved and interview the child, regardless of the individual circumstances of the case.  That is clearly wrong.  Such a submission is not justified by the Convention itself, or by any provision in the Divorce Act, or by any binding jurisprudential authority that I am aware of.  Such a submission is an oversimplification that derogates from the plain wording of the legislation itself, in that Parliament could have worded section 16(3)(e) of the Divorce Act differently so as to specify how, or in what evidentiary form, a judge should meet the mandatory requirement to consider the child’s views and preferences, except where they cannot be ascertained, in determining that child’s best interests.  Parliament chose not to do so.  One might reasonably conclude that the choice not to was informed by considerations that include limited resources on the part of families, limited resources on the part of the Office of the Children’s Lawyer, and the desire not to hold a child in limbo while we wait for something from a third party that may not be necessary.”

          A.S. v. D.S., 2024 ONSC 3928 (CanLII) at 9

“A helpful and succinct statement of the law regarding the enforcements of settlement agreements is found in Zaidi v. Syed (Estate), 2023 ONSC 1244, at para. 13, aff’d 2024 ONCA 406, a case involving a settlement agreement parties reached in connection with an estates dispute:

[12] The law associated with the enforcement of settlement agreements, which is an aspect of the well-settled law of contract, is also well settled…

[13] A settlement agreement is a contract, and the court has jurisdiction at common law and under rule 49.09 to enforce settlements. A motion to enforce a settlement involves two elements. The first element is whether or not there is any genuine issue about the existence of an agreement to settle, and the second is to determine whether there is any reason not to enforce the settlement.

[14] For there to be a binding settlement agreement, there must be a mutual intention to create a legally binding agreement and the essential terms of the agreement must have been agreed upon. However, it is not necessary to have reached agreement on incidental matters, such as the method of payment or the exchange of releases.

[15] There is a strong presumption in favour of the finality of settlements; however, a settlement agreement is a contract and is subject to the law of contract formation, and a settlement agreement can be set aside in the same way that a contract may be rescinded for mistake, fraud, innocent misrepresentation, duress, undue influence, or unconscionability. [Emphasis added, footnotes omitted.]

I should add here that in family cases, settlements can also be set aside under s. 56(4) of the Family Law Act.”

Ali v. Mumtaz, 2024 ONSC 3216 (CanLII) at 36-37