Security for Costs in Custody and Access Disputes

Izyuk v. Bilousov 2015 ONSC 3684

This is a case that deals with security for costs in a high-conflict custody and access dispute where a parent has been flouting the court system and numerous cost awards.

Background

The self-represented father brought a motion for security costs.  He sought a nominal amount of $2500 to discourage the mother’s continuous harassment by way of frivolous court applications.

The unmarried parties separated in 2009 after residing together for two years.  They have a son together of whom the mother originally had temporary custody, and the father had extremely restricted access due to serious allegations the mother made against him.  In 2012, the father was awarded custody and $11,500 in costs after the mother’s consistent dishonesty came to light during the custody proceedings.  She was given generous access despite her deliberate attempts to alienate the child from his father.  A further $20,000 in costs was awarded against the mother in 2014 following a contempt order and a suspected attempt to abduct the child from Canada.

The mother had other cost orders against her that, like the above, remained mostly unpaid as she did everything possible to avoid paying, including claiming she was medically unable to work and filing for bankruptcy.  She also made constant attempts to regain custody through the courts and had not paid any child support.

The father brought this motion in response to the mother’s motion for joint custody, arguing that she was unlikely to succeed as her materials had serious deficiencies.  The mother claims she cannot afford posting any security for costs.

Analysis

Orders made for security for costs are to protect parties from nuisance or irresponsible litigation raised without regard to a case’s merits or the incurring of costs, as court proceedings are time consuming, expensive, and disruptive.

The court applied the following analysis in determining whether to make an order for security of costs:

  • The party seeking costs has the onus to show that the other party falls within one of the enumerated grounds under subrule 24(13) of the Family Law Rules;
  • If the onus is met, the court has discretion to grant or refuse an order for security;
  • If the court orders security, it has wide discretion as to the quantum and means of payment of the order; and
  • The order must be “just” and be based on one or more of the factors listed in subrule 24(13).

Generally, courts in the past have held that only in exceptional circumstances would an order for security for costs be granted with respect to custody and access cases.   However, the court here disagreed.  It is irrelevant that the case is a custody matter where it is shown that a party’s position “is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.”  In such a situation, it is appropriate to stop an unmeritorious claim for custody.

The court was troubled by the mother’s claims for the following reasons:

  • Her behavior had been deteriorating since separation;
  • She continuously returned to court without complying with or addressing the court’s concerns and deficiencies identified to her at every stage;
  • Her superficial expert reports provide no reassurance that she acknowledged to made attempts to address past problems;
  • She has not specifically addressed the determination that she is a flight risk if the child was placed in her unsupervised care;
  • She has not satisfactorily explained why she is on social assistance and unable to work; and
  • She has demonstrated a consistent pattern of deception and reckless litigation

For the reasons above, the court granted the father’s motion for security of costs.  In grounding its decision, the court referred to principles laid out in the recent Supreme Court Case, Hryniak v Mauldin (2014):

  1. Judicial resources are not limitless.
  2.  Protracted and expensive litigation is in nobody’s best interest if a just result can be achieved more quickly and efficiently.
  3. Perpetual litigation in the name of “protecting the child” usually has the opposite effect.
  4.  Our ability to control our process will vanish if we fail to apply costs sanctions in a meaningful way in relation to the growing number of self-represented parties —winners and losers.
  5. Particularly in family law, we have created a complex, time-consuming and expensive system. We will promote mischief and abuse of that system if some litigants never have to worry about either legal fees or costs consequences
  6. The mother’s motion for joint custody was dismissed.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.