“In Izyuk v. Bilousov, 2015 ONSC 3684, as adopted by the Divisional Court in Sabijan v Sabijan, 2021 ONSC 7605, Justice Pazaratz stated when considering whether to order security for costs, the court must turn its mind to the following:
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.
d) The order must be “just” and be based on one or more of the factors listed in subrule 24(13).
(Citations omitted).
In this case, the Estate is situated outside of Ontario – in British Columbia. Accordingly, if there is a cost order levied against the Estate, it has no assets in this province from which Garcia could collect.
Given that the first prong of the test has been satisfied, I do not need to consider whether the Estate’s claims are a “waste of time or a nuisance” in order to proceed.
When deciding whether to exercise my discretion, I have considered the following principles:
a) Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims. 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: Gauthier v. Gauthier, 2019 ONCA 722 at para. 8; Izyukat para. 37;
b) It can be inferred that an analysis under this section will include some consideration of the merits of the case, and whether it is a nuisance: Peters v. Peters et al, 2018 ONSC 7550 at paras. 38-39;
c) The purpose of security for 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: Izyukat para. 36.
d) It is not the intention of any rule governing procedure in the court to deny access to the court by a person who has a genuineclaim and is unable to satisfy … an outstanding order for security for costs due to circumstances beyond his control: McGraw v. Samra, 2004 ONCJ 164 at para. 23, as adopted in Pigeault v. Pigeault, 2009 CarswellOnt 1558 at para. 19;
e) The Family Law Rules, read as a whole, yield the unmistakable intention of the Rules Committee that litigants not be permitted to use the court as a playground. This rule is but one remedy to stop a case in its tracks until a party veering outside of the rules brings him or herself into line with them. It is a control on a blithe pursuit of another person in the courts without attention to the merits of the pursuit and the legal costs likely to be incurred by the respondent to defend the case. It is a remedy built on the principle that court proceedings are expensive and time consuming and not to be launched frivolously or without due regard to the impact on the responding party: McGrawat para. 24, as adopted by LW v. AW, 2011 ONSC 7596 at para. 15;
f) Cases must be dealt with justly, which means ensuring that the procedure is fair to all parties, that it saves time and expense, that it is dealt with in a way that is appropriate to its importance and complexity and using the appropriate court resources: r. 2(2) and r. 2(3) of theFamily Law Rules.”