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.
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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.
