SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Melinda Morwald-Benevides, Applicant (Appellant in Appeal)
AND: Jeffrey Benevides, Respondent (Respondent in Appeal)
BEFORE: The Honourable Mr. Justice J.S. Poupore
COUNSEL: Lesley Burke, counsel for the Applicant (Appellant in Appeal)
Bonie Oldham, counsel, for the Respondent (Respondent in Appeal)
HEARD: In writing
ENDORSEMENT
1The parties appeared before Keast J. of the Ontario Court of Justice in a custody and access proceeding. The decision was released on January 29, 2015. The wife sought to appeal this judgment. The husband brought a motion for security for costs of the appeal. Koke J. of the Superior Court of Justice granted security for costs in the amount of $25,000 on January 23, 2017. The wife now brings this motion in writing for leave to appeal that decision.
The Facts
2The husband is a citizen and resides in Bermuda. In 1998 he met the wife, a resident of Ontario, while she was in Bermuda. They were married in 1998. They have three children ages 14, 12 and 7.
3In paragraphs 10 and 11 of his decision, Koke J. sets out further facts:
10The record is clear that from early on in the proceedings Mr. Benevides has rarely been able to exercise access with his children without engaging in litigation. More specifically, the parties were in court on the issue of access 11 times. The core issue throughout the 23 day trial was access. The trial commenced on April 11, 2014 and concluded more than 14 months later in late June, 2015. During the course of the trial a number of oral motions for access were required to ensure that there was compliance with the existing order for unsupervised access.
11The record also confirms that each time the issue of access was before the court, Mr. Benevides was granted access with the children. Only the first 2 visits were supervised, with the consent of Mr. Benevides. By the conclusion of the trial, Mr. Benevides had had a total of 12 visits with the children since 2011, spanning from 3 – 10 days in duration. Following the trial he has had 2 additional unsupervised access visits.
The Test for Leave
4Rule 62.02(04) sets out the test for granting leave to appeal.
Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
5The applicant’s sole argument regarding the first branch of the test is that Koke J. failed to consider the additional factors that apply to a motion for security for costs when custody and access are at issue.
6The applicant points to a line of jurisprudence indicating that the courts take a cautious approach to granting security for costs when custody and access are in issue, and will only grant it in exceptional circumstances: Hodgins v. Buddhu, 2013 ONCJ 137, 28 F.L.R. (7th) 492; Bragg v. Bruyere, 2007 ONCJ 515, 45 R.F.L. (6th) 226; Logan v. Logan, 1993 CarswellOnt 3912 (Gen.Div.). The applicant submits that Koke J.’s failure to identify the exceptional circumstances supporting his decision to grant security for costs amounts to the application of a different set of legal principles.
7The applicant further states that the second part of the first test is satisfied because custody and access issues have a great impact upon the children.
8The second branch of the test also has two parts.
9The applicant argues that Koke J. made a series of errors of fact and law that bring the correctness of his decision into question.
10It is also argued that where there are strong grounds for appellate intervention, a result cannot be correct. For example, the applicant argues that Koke J. seriously misapprehended the evidence and submits that the Supreme Court has held that “an appellate court must intervene when there is material error, a serious misapprehension of the evidence, or an error in law.”
Decision
11I am of the view that Koke J. did find exceptional circumstances in this case. Read as a whole the decision to grant security for costs is directly related to the high conflict in this case brought about by the applicant’s insistence that access be supervised. Koke J. was very concerned about the effect of this upon the children and about any further and unnecessary expenditure of funds.
12Further, there is no good reason to doubt the correctness of Koke J.’s decision. He used s. 38(26) of the Family Law Rules to guide his analysis and this analysis considers each subsection separately. His conclusion was that the appeal was a waste of time, a nuisance or an abuse of process.
13Koke J. was aware that the applicant did not have sufficient assets in Ontario to pay the costs of the appeal, however he stated that security for costs was warranted because of the applicant’s motivation for the appeal, the cost to the parties and judicial resources used to date and the impact of the litigation on the children.
14I am not satisfied that it is desirable that leave to appeal be granted. Koke J.’s decision is thorough and well reasoned. He recognized the importance of the issues but he also clearly pointed out that this lengthy and difficult litigation ought to come to an end.
The Honourable Mr. Justice J.S. Poupore
Date: June 22, 2017
