SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-2433-3
RE: Ken Reesor – Applicant v. Helen Pigeon - Respondent
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Ken Reesor, Self-Represented
Katherine A. Cooligan, for the Respondent
HEARD: July 21/2014
ENDORSEMENT
[1] This was a motion brought by the responding party for an order for security for costs.
[2] The matter is scheduled for trial in the fall of 2014.
[3] The Respondent has advocated the position that an order for security for costs is justified because the Applicant is insolvent and has very little chance of succeeding at the trial of this matter.
[4] The Applicant’s objective at trial is to have the court set aside a comprehensive separation agreement that dealt with a very specific mechanism for dealing with child support and spousal support. The amount of support payable was to be based on a fixed imputed annual income.
[5] The amount of income was to be $288,839 annually based upon a report provided by the applicant’s own expert.
[6] The amount of child support payable by the Applicant was to be based upon $218,839. The agreement stipulated that unless the income exceeded $275,000 annually the amount of child support would remain the same, conversely decreases in income were not to constitute a material change.
[7] The Applicant now says his income is approximately $140,000 per year and that his ability to earn income has been irreparably damaged by the actions of the Respondent in closing a business line of credit.
[8] The evidence particularly the affidavit of the corporate lawyer Robert Allen would indicate that the closing of this credit account had more to do with the actions of the Applicant than the Respondent. The credit line was closed because it was not being used properly by the Applicant this came to light because he decided to reuse it after it was paid off. The agreement provided that joint debts were to be extinguished and the parties would thereafter be responsible for their own debts.
[9] In any event the closing of the credit line has nothing to do with the comprehensive expert evidence-based income/child support scheme outlined in the separation agreement.
[10] To succeed at a trial the Applicant would have to demonstrate that the separation agreement was entered into in circumstances that were improper having regard to section 56 (4) of the Family Law Act, or because the result is unconscionable pursuant to s. 33(4). The objective evidence before the court demonstrates that this is a case where senior counsel negotiated a comprehensive separation agreement, the key issue was the income of the parties, that income was negotiated and based upon the Applicant’s own expert. The agreement seems to incorporate a very carefully considered resolution of spousal and child support following the breakdown of a long term marriage.
[11] The Applicant is highly educated and was represented when he executed the agreement. I agree with counsel for the Respondent the Applicant here has very little chance of succeeding at trial I find that on the evidence before me this is a case where there is “good reason” to believe that the action is a waste of time or a nuisance.
[12] Furthermore the evidence taken with the Applicant’s representations at this hearing clearly support the proposition that he does not have enough assets in Ontario to pay a likely costs award.
[13] The security for costs remedy is used to prevent a litigant’s pursuit of another person in court without attention to the merits of their claim, and to prevent the legal costs that respondents would likely incur to defend the case. Court proceedings should not 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: see Chatur v. De Los Reyes 2012 ONCJ 527 and McGraw v. Samra 2004 ONCJ 164, [2004] O.J. 3610.
[14] Therefore, there will be an order for security for costs in the amount of $25,000 against the Applicant.
[15] I will accept one page of written argument on the issue of the costs of this motion by both sides within 15 days of the release of this decision.
Mr. Justice Robert L. Maranger
Date: July 23, 2014
COURT FILE NO.: FC-2433-3
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ken Reesor
Applicant
AND
Helen Pigeon
Respondent
BEFORE: Mr. Justice Robert L. Maranger
COUNSEL: Ken Reesor, Self-Represented
Katherine A. Cooligan, for the Respondent
ENDORSEMENT
Maranger J.
Released: July 23, 2014