Want to Avoid a Security for Costs Order? Here’s What Not to Do

Last week I wrote about “security for costs” in family law cases.  To continue the theme, I wanted to consider a specific example of the uncommon conduct by a litigant that can prompt a court to make this kind of relatively-infrequent order.  Essentially, if you are part of existing Ontario family court proceedings, it provides a lesson in “what not to do”.

In Chatur v. De Los Reyes, 2012 ONCH 527, the mother asked the court for an order requiring the father to pay $25,000 as a security for costs.  The litigation between them had been acrimonious, with the father filing 12 motions so far, many of them on an urgent basis and with short notice to the mother.  Some of them asked for the same kinds of court orders that had been denied in earlier proceedings.  The father was also in arrears on his child support obligations, and had earlier been prevented by the court from bringing any new motions without its permission.

He and the mother did not communicate, and the father had reported the mother to the Children’s Aid Society for alleged child abuse, which was never verified.

Additionally, the father:

• Refused to accept correspondence and court documents from the mother’s lawyer;
• Reported the mother’s lawyer to the Law Society for professional misconduct, and threatened his staff with criminal harassment;
• Refused to approve draft Orders even though their terms had been negotiated by the parties;
• Failed to pay costs of about $6,500 that had been ordered on numerous occasions;
• Attempted to bring a new motion even though he had been ordered not to until he paid those outstanding costs;
• Has failed to pay child support arrears;
• Failed to comply with financial disclosure orders;
• Surreptitiously recorded some of the family court proceedings; and
• Threatened to sue the Children’s Aid Society for its child protection investigation.

In considering the father’s objectionable conduct, the court evaluated the threshold test for granting an order for security for costs.  In addition to the order being “just”, the court was obliged to consider a number of factors, including the existence of other unpaid costs orders.

Here, the court recognized that the granting of a security for costs order would essentially stop the father’s litigation in its tracks until the order was paid, and acknowledged the general legal philosophy that such an order should only be granted in “exceptional circumstances” in cases involving child custody and access.   It also conceded that it “can never be a waste of time or a nuisance for a court to concern itself with the custody of a young child”.

Still, this was an appropriate and just case for security for costs; indeed, this was the type of “exceptional” case that warrants it.  The $25,000 the mother was asking was a conservative estimate of the legal fees she would be required to pay to take the matter to trial, especially consider how the father’s “reckless conduct” throughout the proceedings so far had already racked up her fees.  The father had also refused to pay prior costs orders, and this was a “waste of time or nuisance” within the wording of the relevant test, with no favourable prognosis that he would have sufficient assets to pay any cost award that might be levied against him at trial.

The court accordingly ordered the father to pay $25,000 as security for costs, pending which he would not be able to take further steps in the proceedings.

Are you considering asking the court for an order for security for costs?  Contact us for a consultation.