COURT FILE NO.: FS-13-18665
DATE: 20140526
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Helene Marie Therese Daviau, Applicant
AND:
Uri Landman Husid, Respondent
BEFORE: C. Horkins J.
COUNSEL:
Phyllis Brodkin, for the Applicant
Uri Landman Husid, in person
HEARD at Toronto: May 22 2014
ENDORSEMENT
[1] There are two motions before the court. The applicant (“mother”) seeks an order that the respondent post security for costs for the trial in the amount of $25,000. The respondent (“father”) seeks an order adjourning the trial set for June 16, 2014.
[2] The father resides in Lima Peru. At his request that court allowed him to participate in the motions by telephone.
[3] For reasons set out below, the father’s motion to adjourn the trial is dismissed. The trial shall proceed as scheduled. The father is ordered to post security for costs in the amount of $25,000.
[4] The mother is a Canadian. In 1999, she met the father who lives in Lima, Peru. The parties were married in 2003 and the mother moved with the father to live in Peru. They have one child, a daughter, who was born in Lima Peru on August 19, 2006.
[5] Problems in the marriage lead to their separation on September 10, 2008. Litigation in Lima regarding the custody and access to the child ensued.
[6] The mother obtained an order permitting her to travel to Canada with the child for a family visit from September to November, 2010. She left Peru with the child on September 8, 2010 and did not return. The mother and child have been residing with her parents in Toronto ever since.
[7] The father launched an application under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, seeking an order for the return of the child to Peru. This application came before Justice Perkins for adjudication in November 2011.
[8] After a seven day hearing the father’s application was dismissed. In summary, the court found that prior to separation the mother and child lived in a place of unhappiness, oppression and abuse against the mother, witnessed by the child. Before and after separation, the mother experienced death threats from the father and his cousin and the father also had the mother watched. The court found that returning the child to Peru would expose her to grave risk of psychological harm and an intolerable situation. Furthermore, the father's family members, who had been significant actors in creating the intolerable situation, would not be bound by undertakings and, in any event, the father and his family had demonstrated in the past that they would not hesitate to disobey court orders. The mother's claim for custody and an access order was allowed to proceed in this court.
[9] On April 18, 2012, Perkins J. ordered the father to pay the mother costs fixed at $64,000 payable within 60 days. The father’s appeal was dismissed by the Ontario Court of Appeal on October 2, 2012 and the father was ordered to pay the mother costs of $15,000. The father sought leave to appeal to the Supreme Court of Canada. Leave was denied.
[10] The father has not paid any of the costs ordered. Interest is accruing on each costs order.
[11] The father continued to litigate the custody and access issues in Peru. On March 24, 2014 the Family Appeals Court in Peru dismissed the father’s claim for custody and reversed an order for custody that the father had obtained in the mother’s absence. The record states that the any claims made by the father for custody after the mother left Peru were “unfounded in the total extreme”. As a result, the custody order that the mother obtained in Peru in her favour, before she left the country, is the operative order in that country now.
[12] The father confirmed during the motion that there are no active court proceedings of any kind in the courts of Peru that deal with the issues of custody and access regarding the child.
[13] The mother’s application in this court was issued on April 19, 2013. She seeks sole custody of the child. She also seeks orders that she be allowed to sign any required documents that touch on the child’s welfare and be allowed to obtain a passport for the child, all without the consent of the father.
[14] The father filed his Answer on May 24, 2013. In his Answer he agrees that family history set out in the application is correct. He asks that the mother’s application be dismissed. The only relief that he claims in his Answer is “Validation of foreign judgment”. The only order in Peru that addresses custody and access is the order granting the mother custody. There is no order granting the father custody.
Motion to Adjourn Trial
[15] The father’s request to adjourn the trial has no merit. The trial date was set by Perkins J. on April 23 2014. The father participated by telephone. Two days were set for the trial: June 16 and 17. The father says that he was not consulted. I reject this complaint. He had every opportunity to participate in choosing a trial date. He will be in Toronto that week because he has supervised access with the child on June 15, 16 and 17. The access on the 16 and 17th is from 4:45 to 7 pm. The father is concerned that he will not be able to arrive at the access location in time if he is in court. I suggest that the parties ask the trial coordinator if the trial can start at 9:30 am and end at 4pm. The timing of the father’s access can be changed to accommodate court. If access starts at 5pm it can end at 7:30 pm for these two trial days.
[16] The father says that he has a commitment in Peru on June 19 and is leaving Toronto on June 18 at 8 am. He is concerned that the trial may not finish.
[17] There is no risk of this trial taking more than the two days allotted. The only issue is mother’s request for final custody of the child. She is the only witness. The child has been in her sole care since date of separation. Father is not seeking custody.
[18] It is in the best interests of the child that custody be finalized in this court. There is absolutely no reason to adjourn the trial.
Security for Costs
[19] Rule 24 (13) – (16) of the Family Court Rules deals with security for costs. The rule states 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:
A party ordinarily resides outside Ontario.
A party has an order against the other party for costs that remains unpaid, in the same case or another case.
A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
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.
A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13).
(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).
(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).
(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s.
[20] The facts of this case justify granting an order for security for costs. Many of the factors listed in r. 24(13) are present in this case. The father ordinarily resides outside Ontario. He lives in Peru. The father has not paid two significant costs orders. He owes the mother $79,000 plus interest.
[21] There is good reason to believe that the father’s position is a waste of time or a nuisance. The application is simple. The mother seeks an order for final custody of the child and the father does not seek custody or access. The only relief claimed by the father is validation of a foreign judgment. There is no such judgment in his favour dealing with custody.
[22] The evidence is that the father’s assets are all in Peru. There are no assets in Ontario to satisfy a costs order.
[23] The father says that he does not have the means to pay $25,000 for security for costs. Justice Perkins did not accept the father’s evidence regarding his inability to pay costs. In his reasons he found that the father is the “manager of a prosperous family business (in respect of which the grandmother admitted that shares were transferred back and forth among family members at the whim of the father's father).”
[24] In his reasons for costs Justice Perkins rejected the father’s argument about his inability to pay costs. Justice Perkins found the “grandmother’s evidence about the manipulation of shares in the family business more telling” and he preferred the mother’s evidence about the father’s available means. The father holds a senior position in a family business that imports and sells automotive parts. The father says that he is a General Manager of the family business and earns a salary that is the equivalent of $1260 a month. The evidence that Justice Perkins accepted and the evidence before me shows that he has a 50% interest in Motorama, Separation Agreement with a value of approximately $1,296,969 CAD. He is also the owner and president of Space Auto parts & Experts in Miami Florida which had estimated sales in 2009 of $200,000. The address of this company is a condominium in Miami Beach owned by the father’s father. He also owns a new company established in Lima Peru called Representaciones Car S.A.C. The mother provided documents to show that the father is a shareholder in these companies.
[25] In his affidavit on this motion the father continues to dispute the findings of Justice Perkins. He refuses to accept that he lost and that all of his appeals have been unsuccessful. He demonstrates no intention to pay any part of the costs orders.
[26] The mother has limited money to fund the litigation and currently owes her counsel over $80,000. She pays for all of her child’s expenses. The father contributes the equivalent of $500 CAD a month.
[27] Security for costs in custody and access cases should only be ordered in exceptional cases (see Kaiser v. Wein 2014 ONSC 752). The concern is that if security is not posted then the pleading will be struck and the parent who is in default would not be entitled to participate in the custody and access trial. Such a result should only be ordered in exceptional cases where no other remedy would suffice (see Kovachis v Kovachis 2013 ONCA 663; Purcaru v Purcaru 2010 ONCA 92.)
[28] The facts in this case are distinguishable and as a result the concern with striking the father’s Answer if he fails to post security for costs does not arise. This application is not a dispute between parents as to which should have custody. It is not a dispute about whether the non-custodial parent can have access. The mother seeks a final custody order at trial. The father is not seeking custody and he does not ask for access. In fact the mother has given him supervised access when he travels to Toronto.
[29] Based on all of the facts set out above, this is a crystal clear case for security for costs.
[30] I order that the father post security for costs for this trial in the amount of $25,000.00 pursuant to Rule 24(13) of the Family Law Rules.
[31] The father shall post the security no later than June 9, 2014. The father shall post the security by delivering the money to the mother’s counsel “MacDonald & Partners LLP in trust”. The security shall be held in trust pending further order of the court.
[32] If the father fails to post the security for costs as ordered, his Answer shall be struck and he shall have no right to participate further in this application and in particular no right to participate in the trial that will commence on June 16, 2014.
[33] The mother has been wholly successful on both motions. She is entitled to costs. The issue of security for costs is important and the mother has acted reasonably throughout. I fix her costs for both motions at $3000.
C. Horkins J.
Date: 20140526