Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Ayodele Mobolaji Agboola, Respondent (Appellant in appeal)
AND:
Emma Samuda Unoh, Applicant (Respondent in appeal)
BEFORE: The Honourable Madam Justice L. E. Standryk
COUNSEL: Self-represented Respondent (Appellant in appeal)
Lawrence Liquornik, as counsel for the Applicant (Respondent in appeal)
HEARD: August 15 and 23, 2023
DECISION ON MOTION FOR SECURITY FOR COSTS
Overview
1Ayodele Mobolaji Agboola (the “father”) and Emma Unoh (the “mother”) are parents to Zoe Joy Agboola born October 1, 2014 (the “Child”).
2A trial before Justice Turnbull in the Ontario Superior Court of Justice took place over a period of 14 days in May 2019. Oral reasons for judgment were provided on June 27, 2019, an amended judgment on June 28, 2019 (collectively the “Final Order”), and a costs decision on September 6, 2019 (the “Costs Order”).
3The Final Order directed that the mother have sole decision-making responsibility and primary residence of the Child. Parenting time was granted to the father. The regular parenting schedule requires the father to travel to St. Catharines, Ontario thefirst and third weekends of every month. In addition to the regular parenting schedule, the father is to enjoy holiday time and two non-consecutive weeks of summer vacation time with the Child each year. One week of the two weeks of summer vacation may take place in Colorado or wherever else the father is residing in Canada or the United States. The Final Order also dealt with the issue of child support.
4The father appeals the Final Order and the Costs Order. The appeal is to be heard October 30, 2023.
5The mother moves for security for costs of the appeal in the amount of $25,000.
6For the reasons that follow, security for costs of the appeal is ordered in the amount of $15,000.
Background and the Trial Judge’s Findings
7The parties were married in 2011. The Child was born in the United States of America. The parties resided in St. Catharines, Ontario for a period before moving to Colorado to attend Charis Bible College in November 2013. The parties were divorced in Colorado on June 16, 2017. All property issues arising from the dissolution of the marriage were resolved in Colorado.
8The litigation in Ontario began in 2016 when the father filed an application under the Hague Convention seeking the return of the Child from Ontario to Colorado. On October 31, 2016, Justice Scott dismissed the application finding that while the Child was wrongly retained in Ontario by the mother, the father had acquiesced in the retention of the Child in Ontario by the mother. Justice Scott ordered further that the mother’s application under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, filed June 3, 2016, in St. Catharines could proceed.
9On December 8, 2016, the father brought a motion to stay the mother’s application, which was dismissed, and costs were ordered against him in the amount of $750.
10On June 8, 2017, the father appealed the decision of Justice Scott to the Divisional Court. That appeal was dismissed with costs. The father sought leave to appeal the Divisional Court decision to the Court of Appeal. Leave was refused.
11The 14-day trial began May 13, 2019 before Justice Turnbull. The Final Order was made pursuant to provincial legislation, namely the Children’s Law Reform Act, because the divorce had been granted and all property issues resolved in Colorado.
12At the conclusion of the trial, on September 6, 2019, the court ordered costs against the father in the amount of $54,594.82.
13The father filed his notice of appeal with the Divisional Court on July 25, 2019. The Costs Order is stayed by the father’s appeal to the Divisional Court and has not been paid to date.
14On December 19, 2022, the father filed a contempt motion with the Superior Court of Justice, St. Catharines. On March 10, 2023, the father filed a motion to change the Final Order in the Superior Court of Justice, St. Catharines.
15On June 21, 2023, the mother filed a motion for security for costs in both the Divisional Court and Superior Court of Justice requesting $25,000 security in respect of the appeal, $15,000 with respect to the contempt motion and either $50,000 (without a trial) or $100,000 (with a trial) regarding the motion to change.
16On April 21, 2023, Justice Sheard as a judge of the Divisional Court ordered that the motion for security for costs by the mother in the Divisional Court file 35/19 was to be heard in St. Catharines together with the mother’s motion for security for costs filed in the Superior Court of Justice, St. Catharines file 353/16. The mother is to deliver her responding materials to the appeal by the earlier of two weeks from the date on which the motion for security for costs is determined or September 29, 2023.
The Appeal
17In his notice of appeal dated July 25, 2019, the father asks that the Final Order be set aside. He requests a new trial, preferably in a jurisdiction outside of St. Catharines, and alternatively that he be granted sole decision-making responsibility and primary residence of the Child.
18In the notice of appeal, the father advances five grounds of appeal:
i. The trial judge in his ruling inexplicably did not refer to or apply in the judgment a significant amount of pertinent evidence and testimony that was (1) manifestly injurious to the case of the mother and/or (2) beneficial to the father’s case;
ii. Even where presented in the ruling, the mother’s excesses were minimized or declared irrelevant;
iii. In one instance, the father was not permitted to fully present his oral testimony on a particularly important matter in the proceedings;
iv. Certain elements of the portions of the evidence referred to in the judgment were different from what was testified; truncation or/and splicing of portions occurred to the detriment of the father’s case. This in some points lent to a materially different presentation in the ruling than what was testified to; and
v. The ruling excluded without explanation all pertinent precedents that were presented in the father’s factum.
19The foregoing grounds of appeal are expanded in the father’s factum dated December 4, 2019 to include:
a. The court erred in law by failing to consider the maximum contact principle;
b. The court erred in procedure or in law by failing to consider the evidence concerning credibility of the mother;
c. The court erred in law by failing to analyze/consider evidence of domestic violence;
d. The court erred in failing to make findings of fact on many topics presented; and
e. The court failed to consider the full range of factors affecting the best interests of the child.
20The father also asserts that the trial judge’s conduct gives rise to a reasonable apprehension of bias against him.
21In a further document before me, the “Replacement Amendment of Part V of the Appellant’s Factum” dated December 2, 2022, the father expands further on the relief sought in the appeal. A summary of the relief requested is as follows:
a. The decision of Justice Scott dated October 31, 2016 be set aside.
b. The ruling of the Divisional Court dated June 8, 2017 be set aside.
c. An order for a new Hague hearing.
d. An order that this case and all subsequent cases be moved out of the superior court division on the basis that the father has only been met with clear and repeated bias in the handling of the case in this region; the region of choice must be a sufficiently cosmopolitan region with ethnic diversity.
e. Any judge hearing the case be solely of the Family Division of the court, not be supernumerary, be one that is unbiased against fathers getting custody, not biased against black men, and not biased for mothers, not biased for doctors, and is not against moving children out of Canada.
Materials Considered and Reviewed
22The mother’s motions for security for costs before the Divisional Court and the Superior Court of Justice, St. Catharines, as well as the father’s two cross-motions, were originally scheduled to be heard on July 14, 2023. The motions were adjourned to August 15, 2023 due to issues concerning the proper filing and uploading of materials to CaseLines. The motions were heard on August 15, 2023 and continued August 23, 2023.
23Unfortunately, several aspects of my July 14, 2023 endorsement regarding organization and preparation of materials for the hearing had not been complied with.
24The materials uploaded to CaseLines were unorganized. Confirmations filed by the mother referred the court to materials containing the wrong date. Materials uploaded by both parties were voluminous, often did not contain hyperlinks, and exceeded a total of 4,800 pages.
25In considering the motions, I have reviewed and considered the following:
a. Mother’s Materials
i. the Divisional Court notice of motion dated June 21, 2023;
ii. the supporting affidavit of the mother sworn May 12, 2023; and
iii. the mother’s factum dated June 28, 2023.
b. Father’s Materials
i. the affidavits of the father dated April 27, 2023 and May 23, 2023; and
ii. the father’s factum uploaded to CaseLines August 14, 2023.
26I have also reviewed each party’s motion(s) filed in Superior Court of Justice, St. Catharines file 353/16, as well as all orders and endorsements previously made in this matter.
27Both parties filed a factum that was comprehensive and of great assistance to the court. The parties referred to more than 50 cases, all of which were reviewed and carefully considered.
Security for Costs – Guiding Principles
28The mother seeks security for costs of the appeal in the amount of $25,000 under rule 61.06(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 61.06(1) provides:
In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
(b) an order for security for costs could be made against the appellant under rule 56.01; or
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
29Rule 61.06(1) requires a two-stage analysis: first, the mother must show that she meets the terms of the rule; second, the motion judge must “take a step back” and consider the justness of the order sought in all the circumstances, with the interests of justice at the forefront. See: Yaiguaje v. Chevron Corp., 2017 ONCA 827, 138 O.R. (3d) 1 (C.A.), at para. 22;Heidari v. Naghshbandi, 2020 ONCA 757, 153 O.R. (3d) 756 (C.A.), at para. 6(2).
30The assessment of justness is fact specific. I must have regard to the specific circumstances of this case. Relevant factors to consider include the merits of the appeal, any delay in moving for security for costs, the impact of actionable conduct by the mother on the available assets of the father, access to justice concerns, the public importance of the litigation and the amount and form of security sought by the mother. See: Yaiguaje at para. 24.
31When an appeal involves the wellbeing of a child, their best interests must be considered in every step of the proceeding. See: Lenihan v. Shankar, 2021 ONCA 142, at para. 35.
32Rule 61.06(1) is permissive, not mandatory. I may refuse an order for security for costs even though the mother satisfies the terms of the rule. See: Yaiguaje at para. 18.
33With these general principles in mind, I turn to consider the mother’s motion under r. 61.06(1)(a) and (c).
Analysis
34Under r. 61.06(a), the mother must prove on a balance of probabilities there is good reason to believe that the appeal is frivolous and vexatious and that the father has insufficient assets in Ontario to pay the costs of the appeal. The good reason to believe standard requires the motion judge to reach only a tentative, not a definitive, conclusion on the absence of merit or assets. See: York University v. Markicevic, 2017 ONCA 651, at paras. 32 and 36; FoodInvest Limited v. Royal Bank of Canada, 2019 ONCA 728, at para. 8.
35I am satisfied that the mother has established that there is good reason to believe that the appeal lacks merit for reasons which include:
a. The request to set aside the order of Scott J. and order a new Hague hearing is res judicata;
b. The father’s motion for leave to appeal the Divisional Court decision of June 8, 2017, was denied;
c. Several of the issues raised by the father as grounds for appeal turn on challenges to findings of fact and credibility made by the trial judge. The court has held that such appeals appear to have no merit. See: Schmidt v. Toronto-Dominion Bank (1995), 1995 3502 (ON CA), 24 O.R. (3d) 1 (C.A.); Henderson v. Wright, 2016 ONCA 89, at para. 16;
d. The trial judge in both the reasons for judgment of the Final Order and the Costs Order identified concerns with the mother’s testimony and credibility stating that he was singularly unimpressed with her behaviour;
e. The trial judge made a finding that the mother’s behaviour was ultimately much more the cause of the hostile relationship that existed between the parties. This had a direct impact on the costs awarded at trial;
f. The trial judge prudently provided an overview of the evidence of the parties concerning allegations of domestic violence between them, and, considering the extensive history of domestic violence and breakdown in communication, found that any suggestion of a joint custody arrangement or a shared parenting arrangement would not be workable and most certainly not in the best interests of the Child; and
g. The trial judge outlined the applicable law concerning the analysis of the best interests of the Child for the purpose of deciding the issue of custody. Reference was made to each individual consideration required by s. 24 of the Children’s Law Reform Act and the factors the court is required to consider. The trial judge considered each party’s plan of care in the context of the best interests of the Child.
36Given careful review of the court’s reasons for judgment, Costs Order, and the record before me, I am unable to tentatively conclude that the trial judge’s conduct gives rise to a reasonable apprehension of bias. His review of the evidence and findings appears, on its face, even-handed. He commented on the father’s able submissions and positive relationship with the Child. He commented that the behaviour of both parties from time to time was provocative, hurtful, and unnecessarily antagonistic and found that the mother’s behaviour was much more the cause of the hostile relationship between the parties.
37With respect to whether the father retains assets in Ontario, there was no evidence proffered by the father regarding his current finances or assets in Ontario. I therefore draw a negative inference from the lack of evidence and conclude that the father has no assets in Ontario and query the finances available to satisfy costs of the appeal, if ordered.
38As for the justness of the order for security for costs, I have considered all the circumstances of this case as well as the justness of the order holistically. The circumstances include:
a. Following the case conference before Justice Sheard on April 21, 2023, the mother moved expeditiously with her motions for security for costs. In this regard, I can find no delay by the mother in proceeding with her motions.
b. The father resides in the United States and has no assets in Ontario. While he has complied with all court orders as to costs, there is an outstanding sizeable award from the trial as stayed by this appeal.
c. The number of the issues raised by the father on the appeal are considerable and will require comprehensive and detailed responding materials from the mother.
d. There appears to be no merit to the appeal.
e. The parties have been involved in litigation with one another for approximately seven years with a further five motions filed with the Superior Court (mother’s security for costs motion; father’s two cross-motions, motion to change, and contempt motion). There appears to be no end in sight to the litigation. In addition to these motions, the mother also filed an urgent motion heard by me in the Superior Court of Justice, St. Catharines on August 23, 2023.
f. There continues to be a great deal of animosity between the father, the mother, and her counsel, Mr. Liquornik. The father stated during his submissions to the court that things were going well between he and the mother prior to counsel’s involvement. Once counsel told him to provide his address or he would not see his daughter, the father took this as a “call to war.” Unfortunately for both parties but most importantly the Child, the animosity has not waned.
g. Much of the animosity is caused by the inflammatory language used by the parties and notably the mother and her counsel. This approach to litigation gives way to an affidavit war and continued conflict.
h. The father travels from Colorado to Ontario on the first and third weekends of each month to exercise parenting time with the Child at considerable expense.
39An order for security for costs is intended to provide "a measure of protection" to the mother for the costs to be incurred on the appeal, without denying the father a chance to pursue an appeal. See: FoodInvest, at para. 17. The mother has requested security for costs of the appeal in the sum of $25,000, representing full indemnification. The court has the discretion as to the amount and means of payment of the order.
40Having regard to the circumstances of this case and in particular the expense incurred by the father to exercise parenting time, I find it is appropriate that the father post security for costs of the appeal in the amount of $15,000. In my view, this amount provides the appropriate measure of protection to the mother for the costs to be incurred on the appeal, without denying the father the chance to pursue his appeal.
Conclusion
41The father is ordered to pay into court the amount of $15,000 as security for costs of the appeal. If the security is not paid into court within 30 days, the mother may move to have the appeal dismissed.
42In the event the parties are unable to agree on the costs of the motion, they may make written submissions based on a timeline that will be delivered together with my decision on the motions before me in the Superior Court of Justice court file 353/16. Submissions shall be limited to a maximum of three pages, exclusive of relevant attachments. The submissions shall be in 12-point font, double-spaced, with margins set at normal size (2.54 cm). The number of cases that may be referred to shall be limited to no more than ten by each party.
L. E. Standryk, J.
Date Released: September 14, 2023