CITATION: Selwyn v. Selwyn, 2021 ONSC 7050

DIVISIONAL COURT FILE NO.: 395/21 DATE: 20211101

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

Sawsan Selwyn

Moving Party

– and –

Richard Selwyn

Responding Party

Sawsan Selwyn, the moving party, representing herself

Richard Selwyn, the responding party, representing himself

HEARD at Toronto (by videoconference): July 21, 2021

Favreau J.

Introduction

[1] On April 8, 2021, Bielby J. made an ex-parte order requiring Richard Selwyn to return his children from the United Kingdom to Ontario into the care of their mother, Sawsan Selwyn.

[2] The children have been returned to their mother, but Mr. Selwyn nevertheless seeks to appeal the motion judge’s order.

[3] In the context of the proposed appeal, Ms. Selwyn brings a motion for security for costs. As set out below, I am satisfied that this is an appropriate case for security for costs. Mr. Selwyn is not ordinarily resident in Ontario, he has not demonstrated that he is impecunious and there does not appear to be any merit to the proposed appeal.

Factual background

[4] This is evidently a very acrimonious family law dispute. While the parties included significant evidence about that dispute in their materials, it is not necessary for me to review the matter in detail for the purpose of deciding this motion.

[5] The parties are self-represented, but they are not unsophisticated. They are both trained lawyers.

[6] The parties were married in 2006. They originally lived in London, England and moved to Ontario in 2014. They separated in 2017. They have two children, ages 11 and 9.

[7] In March 2021, Mr. Selwyn took the children to the United Kingdom. The parties disagree over whether Mr. Selwyn was entitled to do so.

[8] In any event, as indicated above, on April 8, 2021, Ms. Selwyn obtained an ex-parte order requiring Mr. Selwyn to return the children to Ontario. The order included a finding that the children were ordinarily residents of Ontario and that Mr. Selwyn unlawfully removed them from Ontario. The order required Mr. Selwyn to return the children to the care of their mother and suspended his parenting time pending further order of the Court. The order also contained terms regarding enforcement by various authorities. Finally, the order provided that the balance of the motion was adjourned sine die and could be brought back on three days’ notice.

[9] The children have now been returned to their mother’s care in Ontario pursuant to Hague Convention proceedings in the United Kingdom.

Procedural background

[10] On May 18, 2021, Mr. Selwyn commenced an appeal of the motion judge’s order in the Divisional Court. The grounds of appeal include arguments that the motion judge’s order conflicts with an earlier endorsement made by Woolcombe J., that Ms. Selwyn failed to serve the motion materials on him “forthwith” after the order was granted, and that the order improperly interferes with his parenting time.

[11] On May 28, 2021, this Court held a case conference. As reflected in an endorsement dated May 31, 2021, during the case conference Mr. Selwyn acknowledged that the motion judge’s order was interlocutory and that he therefore first requires leave from the Divisional Court to challenge the order and that he would need an extension of time in order to bring a motion for leave to appeal. In that context, Ms. Selwyn indicated that she wanted to bring a motion for security for costs before Mr. Selwyn could proceed with his motion to extend and for leave to appeal.

[12] This motion was therefore scheduled on that basis. The parties both served affidavits in support of their respective positions on the motion for security for costs.

Preliminary issue

[13] At the beginning of the hearing, Mr. Selwyn asked the Court to dismiss the motion. He took the position that I should find that the motion was abandoned because Ms. Selwyn failed to send in a confirmation form.

[14] The Divisional Court does not require motion confirmation forms. The scheduling direction made by the Court in the endorsement dated May 31, 2021 confirmed the date of the motion and both parties had uploaded their materials to CaseLines. In the circumstances, I saw no prejudice to the parties and proceeded to hear the motion.

Analysis

[15] The issue on this motion is whether an order for security for costs should be made before Mr. Selwyn can proceed with his proposed appeal. Given that Mr. Selwyn concedes that the motion judge’s order is interlocutory, I am approaching the motion for security for costs on the basis that the proceeding before the Court is a motion for leave to appeal the motion judge’s order, including a motion to extend the deadline for the motion.

[16] Ms. Selwyn’s position is that an order for security for costs should be made because Mr. Selwyn is not ordinarily resident in Ontario and that he has insufficient assets to pay a costs order. Mr. Selwyn argues that he should be allowed to proceed with this appeal because it has merit and an order for security for costs would prevent him from moving forward with the appeal because he is impecunious.

[17] As set out below, I am satisfied that this is an appropriate case for an order for security for costs. The primary basis for this order is that there does not appear to be any merit to the motion for leave to appeal the motion judge’s order.

[18] Rule 56 of the Rules of Civil Procedure gives the Court the power to make an order for security for costs in specified circumstances. In this case, Ms. Selwyn relies on Rule 56.01(a) and (e):

56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that

(a) the plaintiff or applicant is ordinarily resident outside Ontario;

(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent…

[19] On a motion for security for costs, the prevailing consideration is the overall justice of the case: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, at paras. 23-25. In that case, at para. 24, the Court of Appeal held that, even where one of the criterion in Rule 56.01(1) is met, the “correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made”. Some of the factors typically considered by the courts in deciding whether to make an order for security for costs include the merits of the claim, whether there is any delay in bringing the motion and concerns over access to justice.

[20] In this case, I first consider whether Ms. Selwyn has met her onus of showing that the circumstances of the case fall within one of the criterion in Rule 56.01(1)(a). I then consider whether it would be just in the circumstances of this case to require Mr. Selwyn to pay security for costs. In doing so, I consider whether Mr. Selwyn has demonstrated that he is impecunious and the merits of the case.

Mr. Selwyn is not ordinarily resident in Ontario

[21] In this case, I am satisfied that Mr. Selwyn is not ordinarily a resident of Ontario.

[22] He is a citizen of the United Kingdom. He lived there until 2014 and moved back there in March 2021. At the time he left Ontario, he vacated his apartment and his lease was terminated. He does not currently have a residence in Ontario.

[23] In his affidavit, Mr. Selwyn does not appear to deny that he no longer resides in Ontario. Rather, he claims that he left Ontario because he had insufficient means to stay in Ontario due to Ms. Selwyn’s alleged failure to pay support.

[24] I do not have to decide why Mr. Selwyn is no longer a resident of Ontario. For the purposes of this motion, it is sufficient that Mr. Selwyn has admitted that he is not currently residing in Ontario. While he states in his affidavit that he intends to return to live in Ontario, he does not include a specific plan or timeline for doing so.

[25] Accordingly, based on the evidence, I find that Ms. Selwyn has met her onus of proving that Mr. Selwyn is not ordinarily resident in Ontario.

Mr. Selwyn has not established impecuniosity

[26] Given my finding that Mr. Selwyn is not ordinarily resident in Ontario, the onus shifts to Mr. Selwyn to demonstrate that he is impecunious and that his proposed motion for leave to appeal is not devoid of merit.

[27] The case law is clear that, in order to establish impecuniosity, Mr. Selwyn must make full and frank disclosure of his financial circumstances and his incapacity to raise the security. As held in Chill Media Inc. v. Brewers Retail Inc., 2021 ONSC 1296 (Sup. Ct.), “[t]here is a high evidentiary burden to demonstrate impecuniosity, and if full disclosure is not made, impecuniosity will not be a factor in the exercise of the court’s discretion”.

[28] In my view, Mr. Selwyn has failed to demonstrate that he is impecunious. His affidavit includes general statements and arguments about his financial circumstances. He denies that he has had any successful business ventures in the United Kingdom. He claims that his bank accounts are overdrawn, but only attaches statements from one bank while admitting that he has accounts elsewhere. Other than these general statements, he has provided no specific evidence that makes clear that he is impecunious or that he is unable to raise any funds. For example, his evidence does not include tax returns or any other documents demonstrating that he has no income and no assets with which to satisfy a costs order or that he has no ability to borrow money.

Mr. Selwyn has not established that the appeal has a good chance of success

[29] Even if Mr. Selwyn cannot demonstrate that he impecunious, the Court should consider whether his motion for leave to appeal has a good chance of success for the purpose of deciding whether, despite the failure to prove impecuniosity, it would nevertheless be fair in the circumstances of the case to allow Mr. Selwyn to proceed with his motion for leave to appeal.

[30] In my view, there is almost no chance that Mr. Selwyn would succeed on his proposed appeal.

[31] As conceded by Mr. Selwyn, he must first get leave of the Court before proceeding with an appeal from the motion judge’s order. Rule 62.02(4) sets out the test on a motion for leave to appeal:

(4) Leave to appeal from an interlocutory order 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 panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel 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 the panel’s opinion, leave to appeal should be granted.

[32] On the first branch of the test, it is not sufficient to show a conflict with the outcome of another decision; rather, the conflict must be with respect to the legal principles applied between two cases. On the second branch of the test, while the party seeking leave to appeal does not have to show an actual error, the party nevertheless must show that there is serious reason to doubt the correctness of the decision. On either branch of the test, the moving party must show that the case raises matters of importance beyond the parties; that such issues are of general importance in the sense that they are important to the development of the law: Lokhandwala v. Khan, 2019 ONSC 6346 (Div. Ct.), at para. 4.

[33] In my view, having regard to this test, there is little prospect that Mr. Selwyn could succeed on a motion for leave to appeal the motion judge’s order.

[34] He has identified no conflicting decision. While he claims that the order is inconsistent with an order previously made by Woolcombe J., this is not the type of conflict that Rule 62.02(4)(a) is concerned with. In any event, on its face, Woolcombe J.’s order does not conflict with the motion judge’s order. In an endorsement dated March 19, 2021, Woolcombe J. refused to grant an order requiring Mr. Selwyn to return the children to her care on the basis that the motion was premature. However, Woolcombe J. explicitly stated that, if Mr. Selwyn did not return the children in accordance with a travel consent given by Ms. Selwyn, “there would be cause for concern”. She further held that “[s]hould that happen, the applicant will be permitted to bring this motion before the court on an urgent and ex parte basis during the week of March 22, 2021”. This is when Ms. Selwyn brought the motion before the Bielby J..

[35] With respect to the second branch of the test, I am not satisfied that Mr. Selwyn has identified any reason to believe the motion judge made any serious errors. When asked to identify errors in the decision below, Mr. Selwyn suggested that Ms. Selwyn failed to deliver the motion materials forthwith. However, this is not an error in the decision but rather an issue with respect to how the order was implemented. This is not a matter to be addressed on an appeal.

[36] Most importantly, this case does not raise any issues of general importance to the development of the law. Given the return of the children to Ontario, the issues appear to be moot. In addition, given that this was an ex parte motion, it was open to Mr. Selwyn to bring a motion before the Superior Court to vary the order. Mr. Selwyn argues that the order has a negative effect on his reputation and interferes with his parenting time. While these are matters that are clearly important to him, the circumstances of this case are specific to the parties and do not raise any legal or procedural issues of broader importance.

[37] In dealing with the merits, I have not explicitly addressed the issue of Mr. Selwyn’s motion to extend the time, which would be a prerequisite to proceeding with the motion for leave to appeal. Given my findings on the merits of the motion for leave to appeal, it is not necessary for me to do so. However, I note that the test on a motion to extend deadlines for appeals also includes a merits component. For the reasons above, it would be hard for Mr. Selwyn to get past that hurdle.

[38] In my view, in all the circumstances of this case, what is just is to require Mr. Selwyn to post security for costs if he wants to move forward with his motions to extend and for leave to appeal.

Amount of security for costs

[39] Ms. Selwyn asks that Mr. Selwyn be required to post approximately $7,000 as security for costs. In my view, this amount is excessive for two reasons.

[40] First, typically the Divisional Court does not award more than $5,000 in costs to the successful party on a motion for leave to appeal. There are exceptions to this, but they arise in particularly complex matters or where there may be special circumstances warranting a higher award.

[41] Second, Ms. Selwyn is self-represented. Based on her affidavit, and given that she works full-time as a lawyer, I accept that responding to this motion for leave to appeal will require her to forego some of her working time and therefore will affect her income. However, in the circumstances, she should not be entitled to the full amount a represented party would typically receive.

[42] In all the circumstances, in my view, $2,500 in security for costs is reasonable in the circumstances. I make an order requiring Mr. Selwyn to post this amount by no later than November 15, 2021, failing which he will be barred from proceeding with the motion to extend and the motion for leave to appeal.

Conclusion

[43] The motion for security for costs is granted, and I make the following order:

a. Mr. Selwyn is to post security of $2,500 by no later than 5:00 pm on November 15, 2021 by paying that amount to the Accountant of the Ontario Superior Court to the credit of Divisional Court File No. 395/21;

b. If Mr. Selwyn does not post security for costs by November 15, 2021, the appeal currently pending before this court will be dismissed and he will be barred from bringing a motion to extend the time for bringing a motion for leave to appeal and the motion for leave to appeal;

c. If Mr. Selwyn does post security for costs, the parties are to contact the Divisional Court within seven days of security being posted for the purpose of setting a schedule for the exchange of materials on the motions; and

d. Ms. Selwyn is entitled to costs of $500 for the motion for security for costs to be paid by Mr. Selwyn within 30 days.

___________________________ Favreau J.

Released: November 1, 2021

CITATION: Selwyn v. Selwyn, 2021 ONSC 7050

DIVISIONAL COURT FILE NO.: 395/21 DATE: 20211101

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Sawsan Selwyn

Moving Party

– and –

Richard Selwyn

Responding

REASONS FOR JUDGMENT

FAVREAU J.

Released: November 1, 2021