Court File and Parties

DATE: 2023 10 06 COURT FILE No.: Toronto D 71293/14 ONTARIO COURT OF JUSTICE

BETWEEN:

INGRID WATSON Applicant

— and —

LEROY WATSON ALSO KNOWN AS LEORY WATSON Respondent

Before: Justice Carole Curtis

Heard on: 19 and 25 September 2023 Reasons for Decision released on: 06 October 2023

Counsel: Glenda Perry, for the Applicant Mother The Respondent Father, unrepresented

CURTIS, J.

Index

1. Over-view
2. Background
3. Litigation History
4. Requiring Leave Before a Motion to Change is Brought a. The Law
5. Security for Costs a. The Law b. Why Make an Order for Security for Costs on a Speculative Basis? i. The Law ii. Analysis
6. Conclusion
7. Orders
8. Costs

Overview

1. This is the decision regarding the mother’s claim for security for costs, should the father seek leave, in the future, to bring a motion to change a support order.

2. The issues on the motion were these: (a) Does the court have jurisdiction to make an order for security for costs as a pre-condition to bringing a motion for leave to bring a motion to change? (b) If yes, what form should that order take? And for what amount? and, (c) What other pre-conditions are just and appropriate to make?

Background

3. The parents have been involved in litigation about the support of their two children (now 17 and 15 years old), and other issues (including spousal support) since 2014. The court file in this matter is substantial, and contains many lengthy endorsements and several Reasons for Decision.

Litigation History

4. The child support order resulted from a two-day trial in 2017. Justice Sherr ordered the following (among other orders): (a) On 30 January 2017, (i) The father to pay the mother child support of $2,276 per month for two children, from 1 February 2017, on income of $196,827; (ii) The father to pay the mother spousal support of $550 per month from 1 February 2017, which could be reviewed in five years; (iii) Support arrears fixed at $56,227.37; (iv) Annual financial disclosure; and, (b) On 4 April 2017, the father was ordered to pay mother’s costs fixed at $15,000.

5. Since these orders were made, there have been repeated attempts by the father to bring a motion to change the support order. This is the litigation history in this case since the trial orders in 2017: (a) On 27 June 2019 the father’s motion to change (brought under the Interjurisdictional Support Orders Act) was stayed until the costs of the trial were paid; (b) On 26 August 2019 a Form 14B motion brought by the father seeking to change the order of Sherr, J. made at trial was dismissed, as an improper use of a Form 14B motion; (c) On 28 January 2020, father’s request on Form 14B to lift the stay of his motion to change was dismissed, as no proof of payment of the costs of the trial had been produced; (d) On 29 June 2020 father’s request to lift the stay of his motion to change was dismissed, as again, no proof of payment of the costs of the trial was produced; (e) The father paid one-half of the costs of the trial ($7,500 of the $15,000 ordered), and on 10 June 2021 father’s request to lift the stay of his motion to change was granted. Father was granted leave to proceed with a motion to change regarding child support only, an order for financial disclosure was made, and a timetable was set for the serving and filing of his materials; (f) The motion to change served and filed by the father in September 2021 also included claims (although he was not permitted to do so) regarding spousal support and parenting issues; (g) On 16 March 2022 father’s motion to change was stayed, again, as there was still $7,500 in costs owing from the trial, and father had not complied with the disclosure order made 10 June 2021. A further order for disclosure by the father was also made; (h) Unopposed by the mother, on 24 March 2022, spousal support was terminated as of 1 February 2022; (i) On 5 October 2022, father had paid the costs of the trial in full, and the father’s motion to change regarding child support was allowed to proceed. A trial plan was set, and the matter was scheduled for trial for 12 December 2022, for three days; (j) On 6 December 2022 father’s request on Form 14B to adjourn the trial so he could complete the disclosure ordered was dismissed, and he was ordered to pay costs of $850. The trial was not reached in the trial sittings of December 2022, and was put over to the trial sittings of 9 January 2023, for three days. The case had to be adjourned from those sittings, at the last minute, due to the unavailability of the father’s lawyer; (k) On 6 February 2023 trial dates were set for 8 May 2023, for three days, peremptory, and a further trial plan was created; (l) On 29 March 2023, on the mother’s motion for security for costs, the court ordered the following: Father shall pay security for costs as follows: (i) $20,000 by Thursday 6 April 2023; (ii) $20,000 by Monday 1 May 2023; and, (iii) Costs of the motion for security for costs to the mother of $5,000 to be paid by 31 May 2023. (m) The security for costs was not paid. The father withdrew his motion to change entirely on 3 April 2023, very close to the trial dates; (n) On 19 April 2023, the case was removed from the trial sittings, and the mother’s claims in her response to the motion to change were scheduled for an unopposed hearing; (o) On 12 June 2023, mother’s unopposed claims in response to the motion to change were granted, as follows (among other things): (i) Child support: 1. $3,063 per month for two children, from 1 January 2018, based on an imputed annual income to the father of $220,486; 2. $2,726 per month from 1 January 2019, based on an imputed annual income to the father of $196,287 (later amended by order of 23 June 2023 to $196,827); (ii) Annual financial disclosure; (iii) Father shall not bring any motions to change without leave, obtained in advance, on a Form 14B, maximum two pages in support, not to be served on the other side unless the court orders. The court determining leave shall take into account any outstanding costs orders; (iv) Father shall produce all disclosure ordered on 16 March 2022, and all disclosure required by the Family Law Rules, the Family Law Act, and the Child Support Guidelines in support of, and along with any request to bring a motion to change; and, (p) On 31 July 2023 the court ordered costs of the father’s motion to change of $37,000, to be enforced by the Family Responsibility Office, and noted that other previous costs orders (5 December 2022 $850, and 29 March 2023 $5,000) had been paid.

6. During this period, the father was living in Alberta. There were enforcement steps taken in Alberta. He brought three unsuccessful stay applications in the Court of Queen’s Bench in Alberta, in which the mother participated.

7. During this period, and throughout this litigation, the father was only intermittently represented by a lawyer. He was repeatedly advised that his case was complicated and that he should get a lawyer.

8. In the mother’s trial affidavit sworn 5 December 2022 she specifically claimed security for costs at the time that the father sought leave to bring a motion to change.

Requiring Leave Before a Motion to Change is Brought

The Law

9. The Ontario Court of Justice has jurisdiction to impose a term order requiring leave to bring a motion to change. The jurisdiction is under rules 14(21), 15(27), 1(6) and 2 of the Family Law Rules. Rule 14(21) provides as follows:

NO MOTIONS WITHOUT COURT’S PERMISSION (21) If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission. O. Reg. 114/99, r. 14 (21).

10. Depriving a litigant of the ordinary right to go to court is a serious restriction of a basic right. An order made under rule 14(21) thus requires careful consideration.

11. Family court proceedings should not become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party.

12. The court can make an order that no further proceedings be brought until costs are paid in full.

13. It is appropriate for the court to require its leave before a party could bring any further court proceeding in high-conflict cases and to control needless further proceedings.

14. In cases ordering that leave be required before a party can bring further motions, these discretionary decisions were found to be entirely appropriate based upon the evidence of conflict, and the father’s threats to continue to litigate the matter. In Tiveron v Collins, the case had a lengthy history, involving multiple court attendances, a temporary court order restraining the appellant from bringing any further motions in the matrimonial proceeding without leave of the court, and multiple costs awards against the appellant, many of which remained outstanding in full. These factors, taken together, provided sufficient justification for the trial judge's order. These factors supporting an order requiring leave in the Tiveron decision are all present in this case.

Security for Costs

The Law

15. Family Law Rules rules 24 (13) to (17) set out the court’s jurisdiction to order security for costs.

ORDER FOR SECURITY FOR COSTS (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).

AMOUNT AND FORM OF SECURITY (14) The judge shall determine the amount of the security, its form and the method of giving it. O. Reg. 114/99, r. 24 (14).

EFFECT OF ORDER FOR SECURITY (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).

FAILURE TO GIVE SECURITY (16) If the party does not give the security as ordered, a judge may, on motion, dismiss the party’s case or strike out the party’s answer or any other document filed by the party, and then subrule (15) no longer applies. O. Reg. 114/99, r. 24 (16).

SECURITY MAY BE CHANGED (17) The amount of the security, its form and the method of giving it may be changed by order at any time. O. Reg. 114/99, r. 24 (17).

16. The discretion in the court regarding security for costs is broad and deep. The court may make an order that is just, and shall determine the amount of the security, its form and the method of giving it.

17. The purpose of an order for security for costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred.

18. These are the principles that courts must apply in determining whether to order security for costs: a) The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds in subrules 24 (13) to (17). b) If the onus is met, the court has discretion to grant or refuse an order for security. c) If the court orders security, it has wide discretion as to the quantum and means of payment of the order. d) The order must be “just” and be based on one or more of the factors listed in subrule 24 (13).

19. Whether an order for security for costs is just in any particular case is an objective determination, based on the record before the court.

20. The mere satisfaction of the criteria in R. 24(13) is not sufficient to merit an order for security for costs. It must also be just to make the order.

Why make an Order for Security for Costs as a Pre-Condition for Bringing a Leave Motion?

The Law

21. The purpose of an order for security for costs is to ensure the existence of a ready source of funds to which a successful litigant may look to satisfy the costs of a proceeding that she has been compelled to incur.

22. The Family Law Rules afford the courts a wide discretion to determine the amount and form of security for costs, as well as the time for paying the ordered security, into court or otherwise giving the required security. The rules contemplate that the form of security to be provided is to be crafted on a case-specific basis, to meet the particular exigencies of the case.

23. The Family Law Rules afford judges in family law cases a wide discretion to make any order considered necessary for a just determination of the case, including orders for costs.

24. The court has jurisdiction to make an order for security for costs, to be paid if and when a party brings a motion for leave to bring a motion to change.

25. The Family Law Rules, read as a whole, yield the unmistakeable intention of the Family Rules Committee that litigants not be permitted to use the court as a playground. 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 into line with them. 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.

26. It is also not the intention of the Rules to support a litigant’s casual disregard of orders made to contain and control his conduct before the courts. A litigant subjected to court orders to curb his running up of litigation costs, whether by costs orders or security for costs orders, should not be allowed to thumb his nose at those orders.

27. Court proceedings are expensive and time-consuming. They 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 litigation.

28. The court has a judicial gate-keeping function, mandated by Rules 2(2), 2(3), 2(4), and 1(8) to guard against any further costs being incurred in relation to this particular support order from 2017.

Analysis

29. Child support for these children has been the subject of virtually endless litigation for a period of nine years.

30. The father acknowledged during the motion for security for costs that he intends to bring a further motion to change the support order.

31. The father’s conduct throughout the litigation, over many years, requires an order for security for costs, prior to him initiating any further proceedings, for these reasons: (a) Despite a two-day trial in 2017, and despite the fact that the 2017 trial decision was not appealed, the father has not stopped litigating the issue of child support for the six years since the trial; (b) The father has substantial assets (as found and as itemized by Sherr, J. in the trial decision in 2017) and significant income. He owns a five-bedroom house in Alberta that he does not live in, but supports to keep another family in. He has an RSP that he did not disclose on any financial statement. He earns now, and has earned for many years, a significant income; (c) He has consistently refused to comply with court orders for disclosure, even in the court cases started by him, and even when he was represented by a lawyer. He did not comply with the trial decision order for annual financial disclosure. When he does produce disclosure, it is produced very late, and often too close to the next court date for the mother to be able to review it. Even at the time set for trial in May 2023, he had not fully complied with the disclosure ordered on 16 March 2022; (d) The disclosure he did produce was not organized, was not indexed or page-numbered, and came from different sources (that is, some from him, some from his lawyer), which required the mother and her lawyer to do extra work; (e) He has consistently refused to comply with the Family Law Rules regarding filing up-dated financial statements, and in his most recent motion to change (started in September 2021), the only financial statement he filed, was sworn 24 September 2021 until he served a financial statement on 6 February 2023, despite the trial being scheduled on three different occasions (for 12 December 2022, 9 January 2023, and 8 May 2023),; (f) At the trial in 2017, the father had eight children with six different mothers, and had shown little financial accountability for those children who did not live with him; (g) the father often did not file the required court documents (e.g., case conference briefs), or file responding materials to mother’s motions. This caused delay and often extra work for the mother’s lawyer. Notwithstanding not filing the necessary court documents, if he appeared at court for those matters (as he often did), he was permitted to make submissions; (h) he started the most recent motion to change in September 2021, it was set for trial three times, and on the eve of trial, on 3 April 2023, he withdrew the motion; (i) he has consistently paid costs orders late, or not at all, and has repeatedly only paid costs orders when he has to in order to take another step in the litigation; and, (j) he has often asked for extensions of timelines and adjournments in the case, and often, unsuccessfully.

Conclusion

32. These are the reasons the court is requiring leave before the father can bring a motion to change, and is ordering that the father shall pay security for costs before the court would grant leave for a further motion to change: (a) The father has abused the court process and created unwarranted expense for the mother with his multiple motions and repeated non-compliance with orders, and this is the only remedy to prevent future abuse. (b) He has the ability to meet these conditions. (c) He cannot manipulate the system and evade the security for costs order made on 29 March 2023 by withdrawing the motion to change, and then starting it up again six months later. This is also an abuse of process. (d) In making these orders, the court considered that the issues were financial issues only, not parenting related. (e) The court gave this matter careful consideration, and no lesser alternative would be just in the circumstances.

Orders

167. The father shall not bring a motion to change without leave, obtained in advance, on a Form 14B, maximum two pages in support, request to be accompanied by evidence of payment of outstanding costs, and to be served on the other side.

168. The father shall pay security for costs, to the mother, or her designate, in the sum of $9,000 at the same time that he brings any request to bring a motion to change. The sum may be paid to the mother’s lawyer in trust until the issue of leave to bring a motion to change is determined. If father is refused leave to bring a motion to change, the sum shall be released to the mother, or any person she designates in writing.

169. The court determining leave shall take into account any outstanding costs orders. Based on the father’s ability to pay, he is likely to be required to pay all costs in full before leave is granted. It is unlikely the father will be granted leave if there is payment of anything less than full amount of the costs owing.

170. If the court grants the father leave to bring a motion to change, the father shall pay security for costs in the additional sum of $31,000 (for a total security for costs of $40,000) before he is permitted to start a motion to change. This clause shall be included in any order granting the father permission to bring a motion to change. The sum may be paid to the mother’s lawyer in trust.

Costs

170. The mother was successful on the motion for security for costs, and is entitled to her costs. One of the purposes of costs is to change behaviour. The father shall pay the mother’s costs of the motion for security for costs, fixed in the sum of $1,900 all in (fees plus HST, disbursements plus HST), to be enforced as support by the Family Responsibility Office.

Released: 2023 10 06

Justice Curtis