SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-06-04352-00
DATE: 2012-09-27
RE: CAMILLERI v. CAMILLERI
BEFORE: JUSTICE VAN MELLE
COUNSEL: T. WATERS for the Applicant
M. TRENHOLME, for the Respondent
DATE HEARD: September 25, 2012
E N D O R S E M E N T
[ 1 ] The applicant, Marcia Camilleri, asks for an Order requiring the respondent, Robert Camilleri, to pay all outstanding costs in this matter within 15 days and an Order requiring Robert to post security for costs within 30 days.
[ 2 ] In requesting security for costs, Marcia relies on 24(13)2 and 24(13)4 of the Family Law Rules :
On a motion, a judge may make an order for security for costs that is just, based on one or more of the following factors:
A party has an order against the other party for costs that remains unpaid, in the same case or another case.
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.
[ 3 ] The outstanding issues are equalization and access. I have reviewed the pleadings and there is no reason to believe that the case is a waste of time or a nuisance. Although there is reason to believe that if Robert is unsuccessful he will not have sufficient assets in Ontario to pay costs, the rule is conjunctive and must be considered as a whole.
[ 4 ] Marcia has one order for costs in the amount of $1,000.00 against Robert that remains unpaid. There is another order for costs in the amount of $7,500.00 in favour of Dorothy Andrews, Marcia’s mother; however, she is not a party so the only costs order for consideration pursuant to this Rule is the one in favour of Marcia.
[ 5 ] Given the issues in this matter and given that the trial is scheduled to be heard in January 2013, I am not prepared to order security for costs based on one outstanding court order in favour of Marcia in the amount of $1,000.00.
[ 6 ] Marcia relies on Rules 1(8) and 14(23) in requesting that an Order issue requiring the payment of the outstanding costs, failing which Robert’s Answer should be struck.
[ 7 ] There is no question that Robert has not paid the two costs orders. One was made by Justice Price in favour of Marcia on January 28, 2011. The other was made by Justice Mossip on May 1, 2012 in favour of Dorothy Andrews.
[ 8 ] According to Robert, he was injured in a motor vehicle accident. His sole source of income is $706.00 per month from Ontario Works.
[ 9 ] I am troubled by Robert’s failure to address in his affidavit the reason(s) for his non-payment of the outstanding costs orders. The case law is clear in that the onus is on Robert to show that Rule 14(23) should not apply. He has not provided sufficient evidence in this regard and has not discharged the onus.
[ 10 ] He must pay the $1,000.00 costs order on or before November 28, 2012. If he does not do so, his Answer will be struck and Marcia may obtain a final order by way of an uncontested trial.
[ 11 ] Even though he has not complied with Justice Mossip’s Order, a situation which I do not condone, I am not going to order him to pay those costs as a condition to proceeding to trial. Ms. Andrews has her independent remedies against Robert for collection of this amount.
[ 12 ] Success on this motion has been divided. Unless there are offers to settle which would affect costs of this motion, costs will be reserved to the trial judge.
[ 13 ] For the argument of this motion, I did not have the entire file before me. As this matter is proceeding to trial, it is critical that the entire file be available for the trial judge and that the Continuing Record be in order. Mr. Trenholme has offered to ensure that the Continuing Record is properly organized for trial once the file arrives in Brampton. I hereby direct the court staff to contact Mr. Trenholme once the file arrives in Brampton.
Van Melle J.
DATE: September 27, 2012
COURT FILE NO.: FS-06-04352-00
DATE: 2012-09-27
SUPERIOR COURT OF JUSTICE - ONTARIO RE: CAMILLERI v. CAMILLERI BEFORE: JUSTICE VAN MELLE COUNSEL: T. WATERS for the Applicant M. TRENHOLME, for the Respondent ENDORSEMENT Justice Van Melle
DATE: September 27, 2012