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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.

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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.

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