Court File and Parties

Court File No.: Halton 198/11 Date: 2012-08-14 Ontario Court of Justice

Between: Sadrudin Chatur, Applicant

— And —

Damiana De Los Reyes, Respondent

Before: Justice Sheilagh O'Connell

Heard on: August 2, 2012

Reasons for decision released on: August 14, 2012

Counsel:

• Sadrudin Chatur on his own behalf
• Damiana De Los Reyes: Robert A. Otto and Student-at-law Konstantine Ketsetzis

O'CONNELL J.:

INTRODUCTION

[1] The respondent mother seeks an order for security for costs against the applicant father in the amount of $25,000.00. She further seeks an order for financial disclosure from the applicant father.

[2] This matter is scheduled to proceed to a trial management conference before Justice Zisman on October 3, 2012 and there will likely be a trial scheduled shortly thereafter. The main issues for trial are custody, access, and child support.

BACKGROUND AND HISTORY OF PROCEEDINGS

[3] Mr. Chatur is 49 years old and Ms De Los Reyes is 42 years old. The parties were involved in a relationship although never married. The parties have a child together, Yzabella Mae Chatur, born November 26, 2009 ("Yzabella"). After Yzabella's birth, the parties and child lived together in Mr. Chatur's home. The parties separated in March of 2011 when Yzabella was sixteen months old. Ms De Los Reyes left the home with Yzabella.

[4] Mr. Chatur commenced this application for custody of Yzabella on April 21, 2011. On or about May 24, 2011, Mr. Chatur brought his first urgent motion for interim shared custody of Yzabella, returnable on June 3, 2011. Since that time, the parties have been engaged in a very litigious and acrimonious family law proceeding. The history of this matter is lengthy and set out in detail in my previous decision dated May 31, 2012.[1]

[5] Currently, Mr. Chatur is exercising unsupervised access to Yzabella every Sunday for a minimum of three hours, pursuant to a court order dated July 19, 2011. Yzabella's principle residence remains with Ms De Los Reyes. The original order regarding access was made on a temporary, without prejudice basis, pending the completion of a custody and access investigation by the Office of the Children's Lawyer.

[6] It is not disputed that Mr. Chatur has served and filed at least twelve separate motions in this application. Many of these motions were brought on an urgent basis and on short notice. A number of the motions sought the same relief, which had already been denied pending the outcome of the investigation of custody and access by the Office of the Children's Lawyer.

[7] Mr. Chatur's motions were filed with the court on or about the following dates: May 24, 2011; June 21, 2011; July 5, 2011; August 24, 2011; October 31, 2011; November 9, 2011; December 16, 2011; January 17, 2012; February 10, 2012, and June 7, 2012.

[8] On May 31st, 2012, after a lengthy hearing, I made an order prohibiting Mr. Chatur from bringing any further motions without leave of the court. I also made some adjustment to the access order pending the receipt of the Children's Lawyer's recommendations regarding custody and access and ordered that Mr. Chatur pay temporary child support in the amount of $270.00 based on an imputed income of $30,000.00. Child support arrears were fixed at $3,510.00.

[9] The Office of the Children's Lawyer has now completed its involvement in this matter. Ms Krystal Dorion, the social worker appointed by the Children's Lawyer conducted a disclosure meeting with the parties on March 14, 2012 regarding her recommendations. Apparently, Mr. Chatur was dissatisfied with the outcome of the disclosure meeting, and in particular, Ms Dorion's recommendations regarding custody and access.

[10] As a result of subsequent events, the Office of the Children's Lawyer determined that Ms. Dorion would only file what it described as a "Collapsed Report" dated April 25, 2012, and which came to the Court's attention after May 31, 2012. The report states:

"On July 19, 2011, the Honourable Justice O'Connell requested the involvement of the Children's Lawyer. The Office consented to provide services pursuant to section 112 of the Courts of Justice Act. The filing of the report was due by February 1, 2012. The report was delayed due to awaiting police reports, medical information and arranging a disclosure meeting. On March 14, 2012, Mr. Chatur and Ms De Los Reyes attended an arranged disclosure meeting.

On April 3, 2012, the Clinical Investigator was required to file a police report at the Halton Regional Police Station due to safety concerns regarding Mr. Chatur.

The Office of the Children's Lawyer has supported the writing of a Collapsed Report following the conclusion of the investigation.

Following the disclosure meeting, this investigator began to experience Mr. Chatur's behaviour as harassing due to the following incidents;

1. Mr. Chatur encroached upon this investigator's personal space. The Halton Regional Police were contacted and a formal complaint was registered on April 3, 2012.

2. Mr. Chatur made false allegations against the investigator that were directed to my employer. These accusations initiated the involvement of child protection services."

[11] Mr. Chatur later disclosed that he also made an audio recording of the disclosure meeting with the Children's Lawyer, without the knowledge or consent of anyone else present. According to counsel for Ms De Los Reyes, the excerpts from the disclosure meeting transcribed by Mr. Chatur and filed with the court contain a number of errors.

[12] It is has been Mr. Chatur's position from the outset of his application that the parties should have joint custody of Yzabella in an equal time sharing arrangement and that he cannot afford to pay child support. Yzabella will be three years old in November of this year. She has been in Ms De Los Reyes' primary care and control since the parties separated in March of 2011, pending the completion of a child protection investigation by the Halton Children's Aid Society and the Children's Lawyer's investigation.

[13] The parties do not communicate and there has been extensive police and children's aid society involvement in this case. Mr. Chatur has reported Ms De Los Reyes to the police for alleged fraud and theft. He has also reported her to the children's aid society for alleged child abuse. Ms De Los Reyes has reported Mr. Chatur to the children's aid society for alleged violence and abuse. Ms De Los Reyes family doctor has also reported concerns regarding alleged child abuse to the children's aid society regarding Mr. Chatur. Although none of these reports or allegations have been verified, it is fair to say that there is a lengthy history of accusations, mistrust and non-communication between the parties.

MR. CHATUR'S CONDUCT THROUGHOUT THESE PROCEEDINGS

[14] The manner in which Mr. Chatur has conducted this litigation has caused a significant amount of delay and greatly increased Ms. De Los Reyes' legal costs. In my previous ruling dated May 31, 2012, I stated that Mr. Chatur "is very close to becoming a vexatious litigant" in this matter. What follows are some examples of how Mr. Chatur is conducting his case:

1. At a motion on November 9, 2011 regarding child support and access, Mr. Chatur advised that he refused to accept correspondence or court documents from Mr. Otto, Ms De Los Reyes' lawyer, or his staff because he felt threatened by them. At this time, he had reported Mr. Otto to the Law Society of Upper Canada for professional misconduct and threatened criminal proceedings against Mr. Otto's staff for alleged criminal harassment. Throughout these proceedings, Mr. Chatur refused to be to be personally served with court documents, would not accept documents by fax, and after initially agreeing to accept documents by email, then refused, citing harassment by Mr. Otto and his staff. The amount of time spend in court sorting out the service issues has been considerable.

2. Mr. Chatur would not approve the draft order that Mr. Otto prepared regarding the November 9, 2011 order for child support, necessitating a telephone conference between Mr. Chatur, the Respondent's counsel and the clerk of the court. After the conference, the order as drafted by Mr. Otto was approved by the clerk of the court and the order was issued and entered on that date.

3. Mr. Chatur appealed the November 9, 2011 order regarding child support and access. The appeal was heard by Justice Snowie of the Superior Court of Justice on March 21, 2012. The appeal was dismissed and Mr. Chatur was ordered to pay costs in the sum of $4,562.38. Justice Snowie further ordered that Mr. Chatur was not permitted to bring any fresh steps in the proceeding until the cost award was paid.

4. On April 19, 2012, Mr. Chatur served a further motion returnable in the Superior Court seeking leave to appeal Justice Snowie's Order. The motion was heard by Justice Miller. Mr. Chatur's motion was dismissed and he was ordered to pay costs in the sum of $2,000.00.

5. Mr. Chatur has not paid the above orders for costs, either in part or in full. The outstanding costs owed by Mr. Chatur total $6,562.38. Mr. Chatur attempted to bring a further motion on June 7, 2012, notwithstanding his non-compliance with the cost orders.

6. Since the child support order made on November 9, 2011, Mr. Chatur has not paid any child support pursuant to the Order, nor has he paid the arrears ordered. The total arrears of child support outstanding are currently $4,320.00.

7. Mr. Chatur has not complied with the court orders for financial disclosure, causing unnecessary adjournments and when he has provided some disclosure, he has either served the documents at the eleventh hour or brought the documents to court, causing further delay as adjournments were necessary.

8. Mr. Chatur has surreptitiously recorded or attempted to record the superior family court proceedings before Justice Snowie and possibly these court proceedings. Although Mr. Chatur has indicated to this court that he has not recorded the proceedings, it is his position that he is entitled to do so. When this was challenged by Mr. Otto, further court time was spent on this issue.

9. Mr. Chatur, by his conduct has caused the Office of the Children's Lawyer to decline to provide a complete 'section 112' social work report in this matter, after months of investigation. The worker has cited her personal safety as a reason for declining to provide recommendations regarding the child's best interests. This has also made it difficult, if not impossible to have any settlement discussions without the benefit of the Children's Lawyer's report and recommendations regarding custody and access. The trial will be lengthened as it will be necessary for the social worker to be summoned to court to give detailed evidence regarding her investigation, findings and recommendations. In ordinary circumstances, the social work report is simply filed as evidence and the social worker, if necessary, is then cross-examined on its contents.

10. In addition to reporting Ms. De Los Reyes' counsel to the Law Society of Upper Canada for professional misconduct, and threatening criminal proceedings against his staff for criminal harassment, Mr. Chatur has threatened a lawsuit and filed a complaint against the Children's Aid Society for its child protection investigation in this matter, he has reported the Children's Lawyer's social worker to the Children's Aid Society for alleged child abuse, he has reported this court and Justice Snowie to the Judicial Complaints Committee, and he has brought two motions before the court for recusal, both of which I dismissed. All of these actions have increased the expense incurred by Ms. De Los Reyes because they have created delay and forced her to respond to the various allegations made against her lawyer, his staff, the court, the children's aid society and the Children's Lawyer.

11. At the first return date for this motion, Mr. Chatur advised the court that he had not been served with the motion materials. As there was no affidavit of service in the court file and Mr. Otto had not brought one to court, the motion was adjourned to August 2, 2012 to ensure that Mr. Chatur was served with the motion documents and given an opportunity to reply. A copy of the motion materials were made for Mr. Chatur by the court staff on that day. At the return date of August 2, 2012, Mr. Otto provided the affidavit of service and it was determined and not disputed by Mr. Chatur that he had, in fact, been served with the motion materials before the original return date of the motion, making the adjournment unnecessary and a waste of time.

THE LAW AND ANALYSIS

[15] Subrule 24(13) of the Family Law Rules provides the authority for a court to make an order for security for costs, if certain criteria have been met. The order must be just and one or more of the following factors must apply:

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.

2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

4. 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.

5. A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13).

[16] The effect of an order for security for costs is set out in subrule 24(15) of the Rules:

(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise. O. Reg. 114/99, r. 24 (15).

[17] Under subrule 24(16), if a party does not give the security as ordered, then a judge may, on notice, dismiss the party's case or strike out the party's answer or any other document filed by the party.

[18] The mere satisfaction of one or more of the criteria under subrule 24(13) is not sufficient to entitle Ms De Los Reyes to security for costs. It also must be just for such an order to be made. Justice Heather Katarynych described the rationale for the rule as follows in S.M. v. J.S., 2004 ONCJ 164:

"The "security for costs" remedy is but one of a number of remedies provided by the rules to stop a case in its tracks until the party veering outside of the rules brings himself or herself into line with them. It is a control on a blithe pursuit of another person in the courts without attention to the merits of the pursuit and the legal costs likely to be incurred by the respondent to defend the case. It is a remedy built on the principle that court proceedings are expensive and time consuming and not to be launched frivolously or without due regard to the impact on the responding party...

As a brother judge has recently pointed out, court proceedings are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and oblivious to the mounting costs of the litigation. See Heuss v. Surkos, 2004 ONCJ 141."

[19] In cases involving custody and access, where the best interests of the child are the paramount consideration, it has been held by a number of courts that security for costs should only be granted in exceptional circumstances.[2] Justice J.W. Quinn questions this approach in Stefureak v. Chambers, and states the following at paragraph 18 of that decision:

"Where it is shown that the position being espoused by a party "is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs," it matters not that custody is the issue. And, if this means that the proceeding, effectively, is ended or stayed, so be it. I can think of no better case to stop in its tracks than an unmeritorious claim for custody."

[20] While it is true that a party's position in a custody case may be unreasonable and lacking merit, "it can never be a waste of time or a nuisance for a court to concern itself with the custody of a young child."[3] I agree with the comments of Justice A.T. MacKay in Bragg v. Bruyere, 2007 ONCJ 515, wherein he appears to adopt a middle ground between the above two approaches:

"Courts are justifiably cautious in ordering security for costs in family litigation where the best interests of the children are paramount. The court does not wish to see the merits of the case determined by a party's inability to post security for costs. However, in appropriate circumstances, the court may make such an order."

[21] In my view, this is an appropriate and just case for security for costs. I find that even following the line of cases that require "the most exceptional circumstances" in custody and access cases, this would be an exceptional case that warrants an order for security for costs. Mr. Chatur's reckless conduct throughout these proceedings has significantly increased Ms. De Los Reyes' legal costs. If Mr. Chatur's claim for joint custody proceeded to trial, it would consume a significant amount of trial time. $25,000.00 is a conservative estimate of the legal fees that Ms De Los Reyes would likely pay. Ms De Los Reyes earns a very modest income and she is raising Yzabella with no financial assistance from Mr. Chatur, given his refusal to pay child support. It is very unlikely she will recoup any of her costs at trial without an order requiring Mr. Chatur to post security for costs.

[22] Although only one of the factors set out under subrule 24(13) need apply before a court can consider making an order for security for costs, two factors apply to the circumstances of this case: subrule 24(13).2 and subrule 24(13).4.

Subrule 24(13).2: Unpaid costs owed by Mr. Chatur

[23] There are currently two outstanding costs orders that have not been paid by Mr. Chatur. There may very likely be a further award for costs made regarding the decision released on May 31, 2012 as Ms De Los Reyes was largely successful. Mr. Chatur has made it very clear that he will not or cannot pay these costs awards.

Subrule 24(13).4: The case is 'a waste or time or nuisance' and the party does not have enough assets in Ontario to pay costs

[24] It is well settled law in Ontario that if parties are not able to cooperate and communicate effectively with one another, then joint custody is not appropriate. The Ontario Court of Appeal has repeatedly made it clear that joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and the ability for parents to put the child's interests ahead of their own interests. There must be some evidence of appropriate communication between the parties regarding the child. See the Ontario Court of Appeal's decisions in Kaplanis v. Kaplanis; Ladisa v. Ladisa; Roy v. Roy; Giri v. Wentgas, 2009 ONCA 606; and B.V. v. P.V. [2012] O.J. No. 1778.

[25] Although I will not be the trial judge, joint custody is not likely to be ordered in the circumstances of this case and there is good reason to believe that it would be 'a waste of time or a nuisance' to proceed with this claim. The child has been in the care and custody of Ms De Los Reyes since the parties separated and there is overwhelming evidence of a history of high conflict and very poor or non-existent communication between the parties. Mr. Chatur has been hostile and disrespectful to Ms De Los Reyes throughout these proceedings and in his opinion, she is a thief and a liar. There is absolutely no evidence of positive or appropriate communication between the parties.

[26] There is also no evidence of parental alienation by Ms De Los Reyes which would warrant a 'parallel parenting' joint custody order. It is not disputed by either party that despite the 'collapsed report' as a result of Mr. Chatur's threatening conduct towards it social worker, the Children's Lawyer was recommending that Ms De Los Reyes have sole custody of Yzabella.

[27] Further, in my view, Mr. Chatur does not have sufficient assets or income to pay a cost award that may be ordered at trial. I previously imputed income to Mr. Chatur in the amount of $30,000.00 for child support purposes, albeit based on a limited evidentiary record. Although Mr. Chatur disputes that he earns this amount, even at an annual income of $30,000.00, a costs award of $25,000.00 would be almost equivalent to Mr. Chatur's gross income for one year. Further, although Mr. Chatur owns a home which Mr. Otto estimates is worth approximately $400,000.00, Mr. Chatur advised at the hearing of this motion that the home was heavily mortgaged in favour of his brother and there is little or no equity in it. Mr. Chatur has no other assets in Ontario other than two motor vehicles valued at $3,500.00, according to his sworn financial statement. This would not be sufficient to satisfy a cost award should Mr. Chatur be unsuccessful in advancing his claim for joint custody at trial.

[28] However, there may be merit in Mr. Chatur's claim for expanded access with Yzabella. If Mr. Chatur abandons his claim for joint custody and focuses on his claim for access at trial, then the trial would likely be considerably shorter and therefore considerably less costly for the parties. Having regard to all of the circumstances of this case, including Mr. Chatur's refusal to pay previous cost awards, an order for security for costs would still be just and appropriate, however, at a lesser amount then $25,000.00 if Mr. Chatur does not proceed with his claim for joint custody.

Request for Financial Disclosure

[29] Ms De Los Reyes also seeks an order that Mr. Chatur produce the following financial disclosure forthwith:

1. the 2011 March monthly statements for each of his then existing credit cards;

2. a list of all other credit cards for which Mr. Chatur had signing privileges on April 1, 2011 and the date he cancelled any of them;

3. copies of his monthly statements for all credit card accounts from January 2011 to date.

[30] Mr. Chatur is self-employed and it is well established in the case law that a self-employed person has an obligation to put forward adequate and comprehensive records of income and expenses, so that a proper determination of income for child support can be established. This issue is proceeding to trial as there is only a temporary order for child support currently in place. Mr. Chatur was previously asked to disclose his credit card information and the disclosure produced was inadequate. The above request for disclosure is reasonable and will be granted.

COSTS

[31] At the conclusion of the hearing on August 2, 2012, Mr. Otto has submitted a Bill of Costs in the amount of $5,953.69 for the preparation and two attendances required for this motion. Ms De Los Reyes has been entirely successful in this motion and seeks her legal costs. Mr. Otto is a very experienced family lawyer and his hourly rate is $425.00 per hour. Further, the motion did not proceed at the first court attendance because Mr. Chatur stated that he had not been served with the motion materials, a statement later proven to be untrue. I order that Mr. Chatur pay $3,500.00 in costs at the rate set out below.

ORDER

[32] For the above reasons, I make the following orders:

1. The Applicant, Mr. Chatur, shall post security for costs in the sum of $25,000.00, payable by way of cash, certified cheque or money order to the Ontario Court of Justice within 30 days of this order if he proceeds with his claim for joint custody at trial.

2. If Mr. Chatur abandons his claim for joint custody and only pursues his claim for expanded access, then the security for costs to be posted by him will be reduced to $10,000.00, again payable by way of cash, certified cheque or money order to the court within 30 days of the date of this order.

3. Ms Chatur shall deliver by way of ordinary mail, copies of the following to the Respondent's counsel, no later than 30 days of the date of this order:

   a. his 2012 March monthly statements for each of his then existing credit cards;

   b. a list of all other credit cards for which Mr. Chatur had signing privileges on April 1, 2011 and the date he cancelled any of them;

   c. copies of his monthly statements for all credit card accounts from January 2011 to date.

4. The costs of this motion are fixed at $3,500.00. Mr. Chatur shall pay these costs to Ms De Los Reyes no later than 30 days from the date of this order, or at a rate of $200.00 per month, commencing September 1, 2012.

Released: August 14, 2012

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] Chatur v. De Los Reyes [2012] O.J. No. 2690

[2] For example, see Mariocchio v. Mariocchio (1981), 32 O.R. 536; J.M.L. v. D.M.L. (1993), O.J. No. 3275; and Winkler v. Winkle [1990], M.J. No. 340 (Man. C.A.).

[3] See Justice P.J. Hambly's comments in Schumilas v. Porter-Schumilas, [2009] O.J. No. 4209, paragraph 30.