Court File and Parties

Court File No.: North Bay FO 14-091 Date: 2020-02-10 Ontario Court of Justice

Between: Amanda Dokis, Applicant

— AND —

Alain Leonard, Respondent

Before: Justice A. H. Perron

Heard on: December 16, 2019

Reasons for Judgment released on: February 10, 2020

Counsel:

• Shawn Hamilton, counsel for the applicant
• Alain Leonard, on his own behalf

Endorsement

Background

[1] Amanda Dokis and Alain Leonard are the biological parents of three children namely X.L. (DOB […], 2007), I.L. (DOB […], 2008) and J.L. (DOB […], 2013).

[2] The parties separated shortly after the birth of their last child in December 2013. On May 1, 2014, this court made a final order granting sole custody of all three children to the applicant mother, Amanda Dokis. The order provided for a joint residency agreement with the children residing with the mother for two weeks then with the father for one week in order to accommodate his work schedule. This final order also provided that the respondent father Alain Leonard was to pay child support pursuant to the child support guidelines.

[3] It appears that the parties reconciled some time in 2015. There was a second and what appears to be a final separation in January 2018. Shortly thereafter, the respondent father, who has been self-represented since the return of this matter to court, brought a Motion to Change Justice Klein's order of May 2014. The matter proceeded through the court system with temporary orders being made on August 8, 2018, August 14, 2018 and July 11, 2019. This last order was a procedural order granting leave to the respondent father to amend his Motion to Change with same to be done by August 2, 2019. The 2 orders made in August of 2018 concern the temporary care and control of the three children to the applicant mother, ongoing child support and graduated access for the respondent father which concluded with access every second weekend and Tuesday evening on a weekly basis.

[4] An order for an investigation by the Ontario Children Lawyer (OCL) was also made in June 2018. A clinical investigator's report was filed by Jeannine Denis on January 15, 2019. The recommendations basically state that the applicant mother should have sole custody of all three children and that the respondent father should have access every second weekend. The recommendations also provide for a number of things that the respondent father must do to address some behavioural issues. The clinician's recommendation is that until there are changes in his behaviour, all of his access should be supervised.

[5] The court was advised by the respondent father on January 17, 2019 that he wished to file a dispute to the OCL report. The matter returned in court on February 21, 2019 and no dispute had been filed. A settlement conference was therefore scheduled. Due to some scheduling issues same did not proceed until June 4, 2019 with discussions being held concerning the respondent father possibly retaining a lawyer to assist him. The endorsement also mentions that the discussion was held concerning a motion for security for cost being argued prior to the matter proceeding to trial.

[6] The matter appeared before me on August 21, 2019 for a trial management conference. It was clear to me at that time that the matter was not ready for trial as the respondent father was advising that he was having a Parenting Assessment completed by a local psychologist. Counsel for the respondent mother also advised that they were bringing a motion for security for cost.

[7] The motion at tab 8 of volume 3 of the continuing record filed by the applicant mother was argued before me on December 16, 2019. Even though this motion requests a number of reliefs, the only matter argued was for an order for security for cost in the amount of $30,000 in accordance with rules 24(13) of the Family Law Rules.

Applicable Statutory and Legal Principles

Rule 24 provides as follows:

(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).

Counsel for the moving party referred me to a variety of case law on this topic.

[8] Justice Pazaratz of the Ontario Superior Court of Justice in the matter Izyuk v. Bilousov (2015), 2015 ONSC 3684, 62 RFL (7th) 131, recognizes at paragraph 36 that "the purpose of an order for security of cost is to protect a party from nuisance or irresponsible litigation conducted without regards to the merits of the case or the costs likely to be incurred". He continues by saying at paragraph 38 that "litigants should not be permitted to use the court as a playground. Court proceedings are expensive, time-consuming and disruptive. They should not be launched frivolously without due regards to the impact on the responding party." Finally, he mentions that "a common theme in the case law suggests security for costs in custody and access cases should only be ordered in exceptional circumstances."

[9] In the decision of Daher v. Khanafer, [2016] OJ 997, Justice Shelston of the Ontario Superior Court of Justice recognizes that a case about custody does not preclude an order for costs. He mentions at paragraph 41 that "where it is shown that the position being espoused by a party is a waste of time or nuisance and that party does not have enough assets in Ontario to pay costs it matters not that custody is the issue. 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 then an unmeritorious claim for custody".

[10] In the matter of Chatur v. De Los Reyes, [2012] OJ 3991, my sister Judge S. O'Connell rules that the conduct of the parties throughout the proceedings needs to be considered on such motions. In that particular case, the father had caused a significant amount of delay and therefore greatly increased the mother's legal cost. His behaviour throughout the proceedings was troublesome which included threatening counsel for the opposing party with criminal charges or reports to the Law Society of Upper Canada. There were refusals to approve draft orders as to form and content and he found himself in arrears on an interim child support order for more than $4,300. There were also ongoing issues concerning his financial disclosure which all contributed to delay the matter and increase legal cost for the only party who had counsel representing her on this matter.

[11] Counsel finally refers me to the decision of S.S. v. M.S., [2007] OJ 928. In this matter, Justice P. W. Dunn of the Ontario Court of Justice makes reference to the Ontario Children's Lawyer's report that made clear recommendations concerning custody and access and some extremely disquieting observation about the father's parenting abilities. The father's position in that matter was clearly opposite to the recommendations made by the said report. The court concluded that it was improbable that there would be any change in the present custody and access regime, mostly considering the recommendations of an experienced and objective investigator.

Respondent Father's Submissions

[12] The respondent father is representing himself in these proceedings. He admits that since the beginning of these proceedings, he has had a very difficult time dealing with the respondent mother's lawyer. He advises that he believes that this lawyer's tactics are immoral and full of lies. He says that he finds himself always needing to defend his position on false statements made against.

[13] He does admit that he has not been on his best behaviour. However, his attitude has changed since being advised by the case conference judge that he should "stay calm and keep cool". He has been doing his best to adopt this approach even though it has been difficult at times.

[14] He has had time to review the OCL report which he believes is flawed. He in fact does not provide much explanation as to why he holds this belief. He simply believes that things have been blown out of proportion. This is why he wanted to have a parenting assessment completed by a psychologist. After making further inquiries about this and a great deal of delay, he realized that he could not afford such an assessment and he has therefore abandoned this approach.

[15] He does admit that he is behind in his child support obligation. He does however suggest that the Family Responsibility Office is slow, and these arrears are not all of his fault.

[16] In response to the applicant mother's counsel submissions, he denies that he is using the court as a playground. All he is trying to do is to get more time with his children. These court proceedings are complicated and are not his expertise. However, he is willing to fight for his children. He advises that he has been there for his children in the past and he cares about them deeply.

[17] In response to inquiries about his financial position, he advises that he is resourceful. He does admit that at this present time, that he is insolvent. There is still the possibility of him obtaining a loan or if he was provided 4 to 5 years, he could probably be able to pay off any cost awards if same are made against him.

[18] He also advised that he was confused as to why this motion for security for costs is being brought so late into these proceedings. In his view, this is simply a delay of tactics and same is not appropriate.

Court's Analysis

[19] In reviewing rule 24 which is noted above, it appears that only rule 24 (13) (4) would apply to this particular matter. This subrule provides that security for costs should be paid if there is good reason to believe that the case is a waste of time or nuisance and that a party does not have enough assets in Ontario to pay cost.

[20] This matter returned to our court as a Motion to Change brought by the father with a first return date of June 7, 2018. After proceeding through case conferences, motions and settlement conferences, the matter has been ready to proceed to trial with a trial management conference scheduled to be held on August 21, 2019.

[21] It is important to note that the pleadings that are still before the court are in the form of a Motion to Change. On July 11, 2019, the respondent father was granted leave to amend his Motion to Change if same was done prior to August 2, 2019. This was never done. Procedurally, this causes some complications as what the father is arguing is that he is trying to change the final order made by this court on May 1, 2014. The same pleadings also seem to suggest that the parties reconciled sometime in 2015 with a final separation in January 2018. It appears from reviewing previous endorsements that the father has been advised numerous times to amend his pleadings and has neglected to do so.

[22] In reviewing some of the case law filed, it seems that the hurdle in obtaining security for costs orders is different for originating Applications and Motions to Change. In assessing the necessity of awarding security for cost in this matter, I approach this as if this was a fresh Application even though the pleadings do not reflect same.

[23] However, the neglect or refusal of the father to amend his pleadings, as suggested by the court numerous times and was in fact provided leave to do same, is a factor to consider when determining if this case is a waste of time or a nuisance.

[24] I have had the opportunity to review communications between the solicitor for the mother and the father who is self-represented. The father's tone and attitude in many of these communications are rude and filled with aggression. These include suggestions by him that mom's lawyer would be reported to the Law Society. Many of these communications contain vulgarities and some can be considered personally threatening. The father's behaviour is clearly worrisome.

[25] There is evidence before the court alleged by mom that there has been an incident of domestic violence between the father and another romantic female partner. This incident allegedly happened in July 2019 while he had the children in his care. Report of this incident was made to the North Bay Police Service (NBPS) and to the local Children's Aid Society (CAS). On his part, Mr. Leonard says that this incident has been blown out of proportion and that his girlfriend will be testifying at the trial to support his position.

[26] Text messages between the alleged victim and the mother has been filed with this court and by reviewing same, there appears to be a clear contradiction that she is in fact supporting dad's position. In one of the messages, mom is suggesting to her that the father advised the court that the girlfriend would be testifying on his behalf. The girlfriend's reply to this with "What?? As if? I never agreed to that". In another message she states that "honestly, my fear is that he would come after me in some way which is why I was happy to speak to the CAS for the kids."

[27] Counsel for the mother had discussions with the father about the release of NBPS and CAS records concerning this incident. It appears that the father had agreed to an order for the release of same and accordingly a draft order was sent to him for his approval. It appears that despite some follow-up on a number of occasions, the approved order for the disclosure of these record was never provided by the father.

[28] After the first separation, a final order was made on May 1, 2014. At that time, the applicant mother received sole custody of all three children with a modified schedule which allowed the father to have week-long access when he was not working away from his residence. After the second separation a temporary order was made with the primary residence of all three children with the mother and the father to exercise access every second weekend and on Tuesday evenings on a weekly basis.

[29] Both orders also provided that dad would need to pay child support. In the last temporary order, the father was ordered to pay monthly child support commencing September 1, 2018 in the amount of $2033 a month based on a gross annual income of $112,000. A statement of arrears was filed from the Family Responsibility Office (FRO) indicating that as of November 1, 2019, the father was in arrears in child support payments in the amount of $9,148.

[30] In the Motion to Change filed by the father, he is seeking to have a Joint Custody order and for the children to spend equal time with each parent on what appears to be a week-about basis. This is clearly contrary to any order that this court has ever made concerning that issue. It is also contrary to the recommendations contained in the OCL report.

[31] The OCL report which has now been filed with the court clearly states that the assessor recommends that the mother have sole custody of all three children. It also states that the father should have access every alternating weekend from Friday after school to Monday morning. The report also recommends a number of things that both parents need to do including counselling for themselves and the children. Recommendation number 21 reads as follows "Alain Leonard is to have supervised access according to the Supervised Access Centre's scheduled should he choose not to make any change in his behaviour that have been causing emotional harm to his children."

[32] The father has not shown anything to this court that he has been attending counselling. In fact, it is mom's evidence that inquiries have been made with the father specifically on this point and she is of the view that he has done nothing to address his behaviour. It therefore appears that the father is presently exercising more access than what is contemplated by the OCL assessor.

[33] Rule 13(4) provides for a two-part analysis. Specific inquiries were made regarding the father's ability to pay costs and he basically admitted that he was presently insolvent. The fact that he was in arrears of more than $9000 in child support payments as of November 2019 seems to support his comments. He also indicated to the court that he could possibly payback any cost order within 4 to 5 years. In my view, the second prong of rule 13(4) has clearly been established wherein the father is not in a position to pay costs.

[34] The first part of rule 13(4) makes reference as to whether the case is a waste of time or a nuisance. This court clearly understands that security for cost orders in custody and access cases should only be ordered in exceptional circumstances. However, there needs to be protection against nuisance or irresponsible litigators and the court must assess the merits of the case and whether cost orders are likely to be incurred. The father's behaviour in general and in these proceedings is very troublesome. He has refused to amend his pleadings even though ample opportunity has been provided, has had unacceptable behaviour with opposing counsel, has refused to approve as to form and content orders for disclosure of NBPS and CAS records concerning an incident of violence and is in substantial arrears in child support. The ultimate relief that he is seeking in his pleadings are clearly contrary to any orders ever made by this court and clearly opposite to the recommendations made by the OCL report.

[35] After reviewing the applicable case law and applying the said principles to the facts at hand, the court concludes that it is highly improbable that the father would have any chance of success to obtain any change in the present custody and access regime. To continue with this matter would result in court proceedings which would be expensive, time-consuming and disruptive to the mother and the children. Accordingly, if this matter proceeded to trial it is highly likely that a substantial cost award would be made against the father. He admits that he is insolvent and could possibly pay any cost within the next 4 to 5 years. This court has never heard of any arrangements made between a family lawyer and their client to have legal fees paid over such a period of time. Why should the person facing substantial costs be allowed such a long time to pay costs with a strong possibility of never being able to pay same.

[36] The court therefore concludes that there exists in this particular matter exceptional circumstances and that this case is a waste of time and nuisance and the father does not have enough assets to pay cost. Therefore, an order for security for cost must be made in this matter if same is to proceed any further.

[37] Mother is seeking a security cost award of $30,000. No formal trial management conference has not been held in this matter. However, both the mother and father have filed a brief in anticipation for such a conference. Neither party seemed to believe that this will be a very lengthy trial. Without any judicial input and by simply reviewing the briefs the trial will be at a maximum of 2 to 3 days. The likelihood of a cost award of $30,000 for a trial of this length is unlikely. Also, considering the present financial circumstances of the father, the likelihood of him ever being able to come up with such a security deposit is highly unlikely.

[38] Accordingly, it is of the court's view that a security deposit in the amount of $15,000 would be more appropriate under the circumstances.

Orders

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

1. Alain Leonard shall post security for costs in the sum of $15,000 payable by way of cash, certified check or money order to the Ontario Court of Justice within 30 days of this order.

2. Until the security has been given, Alain Leonard may not take any further steps in this case unless leave is granted by this court.

3. If the security for costs has not been paid within 30 days, the matter shall return before me for submissions on the next step in this matter.

4. The matter is adjourned to March 12th, 2020 at 9:00 a.m. in courtroom #201 with the original return date of February 20, 2020 being vacated.

[40] If Mother wishes to seek costs for this motion, she is to serve and file written submissions by February 24th, 2020. The father will have until March 2nd, 2020 to serve and file a written response. The submissions are not to exceed three pages not including any offer to settle or bill of costs. They are to be delivered to the trial coordinator's office on the third floor of the courthouse.

Released: February 10, 2020

Signed: Justice A. H. Perron