Security for Costs in Family Law

As you likely know, the field of Ontario Family Law is a sub-set of the province’s civil litigation system, and in many respects represents a narrower, more focused and customized path for litigants with family-related disputes and claims to resolve their legal issues.

While the broader civil litigation process remains the general framework for its Family Law sub-set, certain of the recourses and procedures are less well-known and less-frequently applied in the Family Law context.  The concept of “security for costs” is one of these.

Generally speaking, “security for costs” is a monetary amount ordered to be paid into court by a litigant at the judge’s discretion; until the amount is paid, that litigant can take no further steps in the proceeding.   The intention behind such an order is to protect the likely-successful litigant from being unreasonably burdened in the course of facing litigation instigated by impecunious claimants or those with dubious legal claims.

Certain rules of procedure govern who may apply and what needs to be done to bring a motion; there is also a stipulated set of threshold factors and requirements for a judge to consider in the course of making the determination.  In particular, a family law judge may make an order for security for costs that is “just, based on one or more of the following factors”:

• A party ordinarily resides outside Ontario.
• A party has an order against the other party for legal costs that remains unpaid, in the same case or another case.
• A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs in the litigation.
• 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 in the litigation.
• A statute entitles the party to security for costs.

Do you think an order for security for costs might be appropriate in your family litigation?  Contact us for a consultation.