ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F2172/09
DATE: 2015-06-09
BETWEEN:
LYUBOV IZYUK
Applicant
– and –
SERHIY BILOUSOV
Respondent
Self-Represented
Self-Represented
HEARD: June 1, 2015
THE HONOURABLE MR. JUSTICE PAZARATZ
[1] Is it “in the best interests of the child” that costs orders have teeth?
[2] Clearly, finances are unrelated to parenting skills. And where children are involved we often bend the rules to make sure the right thing happens.
[3] But how many times can an impecunious parent play the “inability to pay” card to flaunt the system?
[4] Who gets hurt when costs orders mean nothing?
[5] The “successful” parent?
[6] Our overburdened court system?
[7] The child?
[8] All of the above?
[9] These were some of the issues on this motion for security for costs in this high conflict custody/access file.
BACKGROUND
[10] The background:
a. The Applicant mother is 33 years old.
b. The Respondent father is 37.
c. They lived together on an unmarried basis between 2007 and 2009.
d. They have a son Maxeem born January 4, 2009. He is now six years old.
e. Following separation the parties became embroiled in a bitter custody battle.
f. The Applicant started out with temporary custody.
g. For an extended period the Respondent had extremely restricted access, based on serious allegations made by the Applicant in affidavits filed at the motions stage.
h. A January 13, 2011 section 112 report prepared by the Office of the Children’s Lawyer (“OCL”) largely supported the mother’s position, recommending she be awarded sole custody with the father to have access on alternates weekends and non-overnight on Wednesdays.
2011 TRIAL – 17 DAYS
[11] The parties then had a 17 day trial spanning June, August and October 2011. Notably, the Applicant was represented by counsel; the Respondent represented himself.
[12] On November 9, 2011 I issued my 606 paragraph judgment. To say that the Respondent father was successful would be an understatement. Among the terms of that final order:
a. Sole custody to the Respondent father.
b. Mother to have liberal and generous access.
c. About 30 additional paragraphs clearly structuring the parties’ ongoing interaction and responsibilities in relation to the trial.
[13] Among the key findings during that trial:
a. The Respondent father was a credible witness on all issues.
b. The Applicant mother was not credible on many issues.
c. The Applicant made repeated and transparent efforts to undermine and interfere with the Respondent’s relationship with the child. At times she cut off access without justification.
d. She lied repeatedly. She lied in affidavits filed at the motion stage. She lied to the OCL social worker (who appeared to accept her allegations at face value). She was caught in multiple lies during the trial.
e. The Respondent was in every respect a loving, caring, responsible, insightful parent.
f. In contrast the Applicant had a presumptive attitude that she should have complete control of the child merely by virtue of being the mother. She repeatedly attempted to exclude the Respondent from Maxeem’s life. She had no insight or understanding as to the negative and cruel impact of her alienating behaviours.
g. She had no reluctance to manipulate the system, lying to judges, social workers, police and others.
h. After extensively reviewing the law in relation to various options – sole custody; joint custody; parallel parenting -- I concluded that it was in Maxeem’s best interest that the Respondent have sole custody and all final decision making authority.
2011 COSTS ORDER - $11,500.00
[14] On December 16, 2011 I issued a 74 paragraph judgment awarding the Respondent costs in the sum of $11,500.00 inclusive of fees, disbursements and HST. Among the considerations:
a. I extensively reviewed the law as it relates to costs in favour of successful self-represented parties.
b. I concluded the Respondent had acted responsibly throughout the proceedings and he was entirely successful at trial.
c. I concluded that the Applicant took advantage of the fact that going to court didn’t cost her a penny. She conducted herself as if her legal aid certificate amounted to a blank cheque – with the result that a scheduled 3-4 day trial turned into 17 days largely because the Applicant fought every issue and pursued every dubious allegation to the bitter end.
d. I concluded the Respondent demonstrated extraordinary skill in representing himself at trial.
e. I considered the Applicant’s ability to pay (she was on Ontario Works then – just as she is currently on Ontario Works).
f. I concluded the Respondent was entitled to compensation for 200 hours of work at a rate of $100.00 per hour. I then reduced fees (but not disbursements) by 50% to take into account all of the other required factors under Rule 24, including the reasonable expectations of each party and an overall result which is fair.
2012 ABDUCTION CONCERN
[15] Sadly, within a few months things took an unexpected and troubling turn:
a. In April 2012 the Respondent brought an emergency motion after discovering evidence that the Applicant was secretly selling her belongings and planning on abducting Maxeem back to her native Ukraine.
b. The Applicant denied the allegations and claimed that various internet communications uncovered by the Respondent were fabrications as a result of someone hacking into her computer.
c. I determined that there was good reason to fear the Applicant intended to abduct the child out of the country, as a result of her continuing preoccupation with gaining full control and excluding the Respondent from the child’s life.
d. On May 23, 2012 I ordered that pending trial on the issue of the risk of abduction, the Applicant’s access was to be fully supervised.
2014 ABDUCTION TRIAL – 6 DAYS
[16] On February 18, 2014 Justice Harper issued a 52 paragraph judgment in relation to two motions determined by way of a six day trial. Again, the Respondent was entirely successful. Among Justice Harper’s findings:
a. The Applicant was indeed planning to abduct the child. Her allegation that extensive incriminating evidence had been fabricated was completely rejected by the court.
b. The Applicant and her brother attempted to mislead the court.
c. The Applicant cannot be trusted.
d. The Applicant was found to be in contempt of certain provisions of my November 9, 2011 order.
e. The Applicant must take steps to satisfy the court that she no longer poses a risk of harm to the child, and there is no further risk of abduction.
f. Custody with the Respondent was confirmed.
g. The Applicant’s access was to continue to be fully supervised at the YWCA Supervised Access Center.
h. To enforce the contempt finding the Applicant was placed on six months’ probation. Terms included engaging in counselling or therapy “in order to deal with her blind obsession with (the Respondent) and her search to prove that he is abusive to the child Maxeem”.
i. The Applicant may return to court to seek expanded access “only after she has evidence that she has successfully completed her counselling and therapy sessions to the satisfaction of the court.”
2014 COSTS ORDER - $20,000.00
[17] On June 12, 2014 Justice Harper ordered the Applicant to pay to the still self-represented Respondent $20,000.00 in costs in relation to the contempt and risk of abduction trial.
UNPAID COSTS
[18] Since 2011 a number of smaller costs orders have also been made against the Applicant. But the Respondent has received very little money.
[19] Within two months of my December 2011 $11,500.00 costs order the Applicant filed for bankruptcy. While bankruptcy proposals are frequently granted with little scrutiny, in this case the Respondent – again self-represented – formally opposed automatic discharge of the bankruptcy. There was a hearing and again the Respondent was successful.
[20] In written Reasons issued April 1, 2014 Master Jean ordered that the bankrupt would be discharged upon payment of $24,000.00 – the total debt of the two largest creditors, including the Respondent. (This was prior to Justice Harper’s $20,000.00 costs order.) Among the bankruptcy court’s comments:
a. The Applicant claimed she didn’t lie during the 17 day family court trial in 2011. She said she was merely misunderstood as a result of language difficulties. This claim was rejected by Master Jean.
b. The Applicant claimed she couldn’t work because of a brain tumour, but her medical disclosure suggested a very mild problem with little impact on employability.
c. “The bankrupt impressed me as someone who simply did not accept the findings of the judge and who was insistent on the merits of her case.”
d. “A clear message needs to be brought home to the bankrupt that she cannot litigate with impunity and with immunity.”
e. “In my view, the bankruptcy was a strategic decision on the part of the bankrupt to rid herself of the debt to the creditor.”
f. A post-bankruptcy costs order made June 4, 2013 was also not paid by the bankrupt.
g. “I am of the view that an absolute discharge in the circumstances would undermine the integrity of the bankruptcy system…financial rehabilitation would demand that the bankrupt take responsibility for her actions.”
h. “I do not accept that the bankrupt is unable to work.”
i. “Insolvency legislation was never designed to provide immunity to costs orders or to protect individuals in circumstances such as this.”
j. “The bankrupt is not an honest and unfortunate debtor.”
[21] Master Jean fixed costs in favour of the Respondent in the sum of $2,500.00. He stated the Respondent “was one of the most skilled and well prepared self-represented litigants to appear before me. He was meticulously organized and demonstrated a good working knowledge of insolvency legislation.”
[22] But having “won” at every stage of the process, the Respondent has still received very little money from the Applicant in relation to costs.
a. He has received none of the $11,500.00 in costs ordered in 2011.
b. He has not received the $2,500.00 costs ordered by the bankruptcy court.
c. He has not received any of the $20,000.00 costs ordered by Justice Harper in 2014.
d. More than $1,000.00 in other costs orders (and interest) are also owing.
e. The Applicant is now paying costs at the self-determined rate of $25.00 per month. The Respondent notes that at that rate it would take more than 80 years for the Applicant to satisfy her debt.
f. In the meantime, the Applicant has also never paid a penny of support for the child.
SUBSEQUENT & CURRENT PROCEEDINGS
[23] Within months of Justice Harper’s February 18, 2014 order, the Applicant started returning to court claiming she had taken all necessary counselling and seeking a radical change in the current order. The Applicant’s materials and strategies were confusing. At times she had counsel. At times she initiated and then withdrew her requests.
[24] Most recently on March 27, 2015 the now self-represented Applicant initiated her current motion requesting “joint custody with week about timesharing”.
SECURITY FOR COSTS
[25] The Respondent countered with this cross-motion seeking:
a. An order that the Applicant be prohibited from bringing any motions or applications until she satisfies Justice Harper’s $20,000.00 costs order.
b. In the alternative, an order for security for costs in the sum of $5,000.00. This was the main focus of the motion.
[26] The Respondent’s materials on this security for costs motion included the following information:
a. He quoted written communications from the Applicant dated March 9, 2014 in which she referred to the first trial as a “horrible mistake” and the second trial as a “joke”.
b. Despite her current assertions that she has received counselling and now understands her past mistakes, the Applicant has never acknowledged any of her deceptions or unhealthy preoccupations.
c. The Applicant has sought out superficial counselling from an “expert” who lacks appropriate credentials and was never told the truth. The Applicant portrays herself as “cured”, but never acknowledges that she had any problems to resolve.
d. While the Applicant complains that weekly two-hour supervised visits at the YWCA are inadequate, for a period of approximately eight months the Applicant cancelled all visits. Even in 2015 the Applicant has missed a number of visits without reasonable explanation.
SIMILAR LITIGATION
[27] By coincidence the Applicant’s brother has recently been involved in identical litigation – so identical that he was also completely unsuccessful in seeking joint custody of his own children.
a. Her brother testified at the Applicant’s first trial in 2011. I didn’t believe him.
b. Her brother testified at her second trial in 2014. Justice Harper didn’t believe him.
c. The Applicant testified at her brother’s 13 day trial which started late last year. Justice Chappel’s judgment dated April 22, 2015 makes it clear she didn’t believe either one of them.
d. The final order specified that the Applicant is only allowed supervised access to her brother’s children.
[28] There is a pattern here.
CHANGING CLAIMS
[29] The motion for security for costs was argued before me on June 1, 2015. The Applicant’s position appeared to change as the motion was argued.
a. She admitted she was asking to change the Respondent’s sole custody order to joint custody, but she didn’t feel this was a complicated issue.
b. She admitted she was asking to go from two hours of institutionally supervised access per week, to a 50-50 time sharing arrangement. Again, she didn’t feel this was a complicated issue.
c. She agreed she and any witnesses she presented should be subject to cross-examination at an oral hearing, even if her evidence in chief was presented by affidavit.
d. She initially felt her part of the motion could be dealt with in a single day. She later revised it to three days. She expressed doubt that the overall hearing would take more than five days (despite two previous hearings requiring 17 and six days respectively).
[30] Notably however as submissions unfolded the Applicant backtracked:
a. She eventually stated she would no longer seek a change from sole custody to joint custody.
b. She also stated she would no longer seek equal time sharing on a week about basis.
c. She said her main concern was to end supervision of access and expand time.
d. She wanted as much time as she could get. She had no specific proposal or request. But she was no longer insisting on 50%.
[31] The Respondent then acknowledged that if the scope of the Applicant’s claims was now being reduced, the amount of security for costs could also be reduced. He suggested if joint custody and equal time were off the table, his request for $5,000.00 security for costs could be reduced to $2,500.00. He submitted security was still appropriate because the Applicant’s materials were so weak she was unlikely to succeed in relation to even her reduced list of claims.
[32] The Applicant said she couldn’t afford to post any security for costs.
THE LAW
[33] Subrules 24(13) to (17) of the Family Law Rules set out the court's jurisdiction to order security for costs:
24(13) Order for Security for Costs
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.
24(14) Amount and Form of Security
The judge shall determine the amount of the security, its form and the method of giving it.
24(15) Effect of Order for Security
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.
24(16) Failure to Give Security
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.
24(17) Security may be Changed
The amount of the security, its form and the method of giving it may be changed by order at any time.
[34] The Ontario Court of Appeal in Serra v. Serra 2009 ONCA 395, [2009] O.J. 1905 stated that modern costs rules are designed to foster three fundamental purposes:
a. To partially indemnify successful litigants for the cost of litigation.
b. To encourage settlement.
c. To discourage and sanction inappropriate behaviour by litigants bearing in mind that the awards should reflect what the court views is a fair and reasonable amount to be paid by the unsuccessful party.
[35] Those objectives presume that whatever costs are ordered will actually be paid. Frustratingly, that doesn’t always happen.
[36] The purpose of an order for security of costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred.
[37] Security for costs is not intended as a roadblock for a person who has a genuine claim. In most instances the merits of a case should not be determined by a party’s inability to post security for costs. Bragg v. Bruyere 2007 ONCJ 515 (OCJ).
[38] But 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 or without due regard to the impact on the responding party. McGraw v Samra 2004 ONCJ 164, [2004] O.J. No. 3610 (OCJ).
[39] A self-represented litigant is entitled to seek an order for security for costs. O’Brien v O’Brien (2003) 37 R.F.L. (5) 409. But since costs awards in favour of self-represented parties are generally less than if the successful party had retained counsel, the lower potential costs exposure will generally suggest a lower level of security for costs.
[40] The court must apply the following analysis:
a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.
b. If the onus is met, the court has discretion to grant or refuse an order for security.
c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v Clark 2014 ONCA 175
d. The order must be “just” and be based on one or more of the factors listed in subrule 24(13). Hodgins v Buddhu [2013] O.J. No. 1261 (OCJ).
[41] A common theme in the case law suggests security for costs in custody and access cases should only be ordered in exceptional circumstances. Kaiser v. Wein 2014 ONSC 752; Daviau v. Husid 2014 ONSC 3188; Parham v. Jiang 2014 ONSC 3293. The traditional rationale:
a. The best interests of children are always paramount.
b. Courts should not allow the outcome in children’s lives to be determined by a party’s financial resources, or inability to post security for costs.
c. Despite any deficiency or non-compliance by a parent, courts are better able to address sensitive children’s issues if both parties participate in the process and provide valuable information. Kovachis v Kovachis 2013 ONCA 663; Purcaru v Purcaru 2010 ONCA 92.
d. These concerns may be particularly applicable where custody or access are being determined in the first instance (as opposed to a motion to change, where the issues may be narrower, and where the moving party has the threshold onus to establish a material change in circumstances).
[42] But high conflict parenting disputes are often the most time consuming, financially draining, and emotionally damaging cases we deal with in family court. Quite often the best gift we can give children is a break from the family siege mentality and perpetual stoking of conflict which accompanies endless litigation.
[43] The suggestion that sometimes security for costs might actually be more appropriate in custody/access cases was discussed by Quinn J. in Stefureak v. Chambers 2005 CarswellOnt 1076:
18 It has been said that "only in the most exceptional circumstances [will] an order for security for costs be granted in respect of a custody application because the primary point in issue is the best interests of the child, and accordingly a parent should not be prevented from putting forth his views by means of an order for security for costs": see Logan v. Logan, 45 A.C.W.S. (3d) 275, 5 W.D.C.P. (2d) 62, [1994] W.D.F.L. 393, [1993] O.J. No. 3275, 1993 CarswellOnt 3912 (Ont. Gen. Div.) at paragraph [22], following Marcocchio v. Marcocchio, 1981 1826 (ON SC), 32 O.R. (2d) 536, 1981 CarswellOnt 1222 (Ont. H.C.) at page 540 [O.R.]. Again, I find myself in disagreement. Where it is shown that the position being espoused by a party "is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs," it matters not that custody is the issue. And, 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 than an unmeritorious claim for custody.
[44] In Perron v Perron 2011 ONCA 776 a father attempting to appeal a sole custody order in favour of the mother was ordered to post $15,000.00 security for costs:
a. The trial judge had criticized the father’s conduct at trial, unnecessarily increasing its length and cost.
b. Shortly after $56,000.00 costs were ordered against the father he went bankrupt, eliminating a property equalization award and also a portion of the costs order.
c. While the father’s appeal was not “frivolous or vexatious”, the low prospect of success was a relevant factor.
d. The father would not be incurring legal fees in relation to the appeal as a result of pro bono services of counsel.
e. It would be unfair to expose the custodial mother to the risk that the father would not satisfy the costs of an unsuccessful appeal.
[45] Similarly in Stetler v Stetler 2013 ONCA 508 a father attempting to appeal a final custody order was required to post $8,500.00 security for costs because:
a. There was good reason to believe the appeal had no merit.
b. The father’s “litigation posture has been and continues to be recalcitrant.”
c. There were significant arrears of child support.
d. There was good reason to believe the father had insufficient assets to pay a costs order which would inevitably arise when his claim was dismissed.
[46] Baker v Rego 2013 ONSC 3309 is another recent case in which a mother attempted to appeal a final custody order. The Divisional Court ordered that she post $10,000.00 security for costs within 30 days, failing which her appeal would be dismissed. The court’s analysis was relevant to the facts herein:
a. The mother was impecunious and on welfare.
b. While the court found that the appeal had little prospect of success, that was not sufficient in itself to allow a finding that the appeal was “frivolous and vexatious”.
c. There must be something more than a low prospect of success in order to justify security for costs.
d. There must be good reason based on the overall facts surrounding the litigation, or from the conduct of the appellant, which would lead to a conclusion that the claim is without merit and brought for some other purpose.
e. At paragraph 30: “It is unfair that (the mother) can continue to litigate this matter without any fear of negative financial consequences in the event of a dismissal…”
[47] Similarly, a mother’s previous conduct in custody proceedings (increasing the father’s legal expenses), combined with her failure to pay child support or previous costs orders resulted in an order for security for costs in Bragg v Bruyere (supra).
[48] In Schumilas v Porter-Shumilas 2009 CarswellOnt 6166 (SCJ) a father was ordered to post $10,000.00 security for costs in relation to a claim for joint custody which clearly had no merit – but if he abandoned that claim and only pursued his more realistic claim for expanded access, no security would be required.
ANALYSIS
[49] The Applicant’s response to the request for security for costs is both predictable and compelling:
a. She loves her son.
b. There are sensitive parenting issues which need to be addressed.
c. She is unemployed. She is in receipt of public assistance. She can’t afford to pay costs.
d. The best interests of her child should not suffer simply because of her financial difficulties.
[50] The Respondent’s position is equally compelling.
a. The Applicant has repeatedly and consistently abused the court process, acted in bad faith, and sacrificed the best interests of their young son, in pursuit of her transparent and unending efforts to eliminate the father from the child’s life.
b. The Respondent has had sole custody of the boy for more than three years. He’s doing an excellent job. But constantly having to respond to legal problems created by the Applicant is a major distraction.
c. Unlike the Applicant, the Respondent has always been employed and assumed financial responsibility for the child. He doesn’t qualify for legal aid or government subsidies. Our system makes everything “free” for the Applicant. The Respondent works and pays.
d. The Applicant keeps coming back to court, often with frivolous and unfocussed requests. The stakes are high – the wellbeing of a young child. So every time the Applicant comes back to court with another motion, the Respondent has to take it seriously and prepare a thorough response. That’s time consuming. It interferes with the family life the Respondent tries to promote for the child. And even though the Respondent can no longer afford a lawyer, these repeated court proceedings still cost him financially in terms of lost wages and wasted vacation days.
e. The Applicant never helps with the child. She assumes no responsibility and pays no support.
f. And yet she can keep coming back to court, over and over again, even after breaking all the rules.
[51] At all times, the court must be concerned about fairness – including fairness to the child.
[52] Supervised access is not intended to be a long-term solution to access problems. M. (B.P.) v. M. (B.L.D.E.) (1992) 1992 8642 (ON CA), 59 O.A.C. 19; Boudreault v.Charles 2014 ONCJ 273; M.T. v. M.G., 2010 NSSC 89. Slawter v. Bellefontaine, 2012 NSCA 48.
[53] Supervision may be an intermediate step in certain situations such as:
a. Where there are substance abuse issues which need to be addressed.
b. Where the child requires protection from physical, sexual or emotional abuse.
c. Where there are clinical issues involving the access parent.
d. Where the child is being introduced or reintroduced to a parent after a significant absence.
[54] In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve.
[55] In this case, the Applicant mother had very specific problems identified in both the 2011 and 2014 trials:
a. First and foremost, she has been found to be a flight risk.
b. Related to this, she has an unhealthy blind obsession with alienating the child from his father. She has a history of saying and doing inappropriate things in the presence of the child.
[56] Justice Harper’s February 18, 2014 judgment made it clear that the Applicant is welcome to return to court when she can establish that she has taken meaningful steps – including counselling – to address her dangerous and destructive tendencies and behaviour.
[57] But the onus is on her.
[58] And satisfying that onus entails more than simply bringing a very general motion every few months, hoping that the mere passage of time will be enough to convince the court to suddenly let down its guard.
[59] All of this leaves us with a dilemma:
a. We hope it will be possible for the Applicant’s access to be expanded and supervision eliminated – so long as it can be done safely. I have no doubt the Respondent sincerely shares this hope.
b. But ever since separation, the Applicant’s behaviour has been getting worse, not better.
c. She started out in a strong position, with temporary sole custody and an OCL report which supported her position.
d. I have never seen a parent in a custody dispute more effectively and consistently demolish their own case.
e. Somehow, she has managed to continuously erode her own position to the point where the most recent order doesn’t entrust her with anything more than two hours of supervised access per week – because of well-established concerns.
f. At every stage concerns and deficiencies have been clearly identified to her by the court. She has been told what to do and yet she keeps coming back to court without having complied.
g. Several times she has returned with superficial reports which provide no reassurance that she even acknowledges past problems, let alone that she has addressed them.
h. And she has provided nothing to specifically address the determination that she is a flight risk. That she was selling her belongings and plotting to leave Canada forever with her son, because she was unhappy the Respondent was awarded custody after the 2011 trial.
i. Indeed, to my knowledge, the Applicant has never actually admitted she was planning on abducting the child. She appears to hope that with the passage of time we will simply forget about that problem.
j. Her impecuniosity is relevant, but it was already taken into account when each of the previous costs orders were made. In all previous orders costs were reduced because she was on Ontario Works. She can’t now use the Ontario Works argument again, as an excuse for not paying anything.
k. And she has yet to fully explain why she is still on Ontario Works. She is an intelligent lady (and a resourceful litigator). She has some post-secondary education and says she was saving money to return to school.
l. She has provided no evidence that she can’t work, and admits at times she has worked. She has provided no compelling evidence that she has made any sincere efforts to contribute to either the outstanding costs orders or child support.
[60] There might be more reason for optimism – and flexibility – if the Applicant showed good faith and reasonableness. But in the context of the Applicant’s consistent pattern of deception and reckless litigation, I find that the Respondent’s request for slightly more meaningful sanctions and controls is both reasonable and perhaps long overdue.
[61] In Hyryniak v. Mauldin 2014 SCC 7 the Supreme Court of Canada clearly identified that a shift in culture is required in our court system. Although that case specifically dealt with summary judgment, it foreshadows new realities we’re all going to have to face:
a. Judicial resources are not limitless.
b. Protracted and expensive litigation is in nobody’s best interest if a just result can be achieved more quickly and efficiently.
c. Perpetual litigation in the name of “protecting the child” usually has the opposite effect.
d. Our ability to control our process will vanish if we fail to apply costs sanctions in a meaningful way in relation to the growing number of self-represented parties – winners and losers.
e. Particularly in family law, we have created a complex, time-consuming and expensive system. We will promote mischief and abuse of that system if some litigants never have to worry about either legal fees or costs consequences.
THE ORDER
[62] The Applicant’s motion dated March 26, 2015 seeking joint custody and equal time-sharing is dismissed on a without prejudice basis.
[63] The Applicant may file a fresh Notice of Motion seeking a determination that she is no longer a flight risk; seeking modification or elimination of supervision of access; and seeking an expansion of access (but not equal time sharing).
[64] She may not seek any other relief without leave of the court.
[65] In relation to any fresh motion as authorized above, the Applicant shall have the option of relying upon her affidavits dated March 27, 2015 and May 27, 2015, provided that she confirms in her notice of motion that this is her intention. This authorization to rely on those previously filed materials is simply to give the Applicant the option of reducing costs in relation to preparing, photocopying and serving materials. There should be no inference that the court has made a determination as to the quality or sufficiency of those previous affidavits. To the contrary, the Applicant is urged to consider assembling materials which more specifically address concerns and threshold issues identified in Justice Harper’s order of February 18, 2014.
[66] As a pre-condition to the Applicant proceeding with any portion of the motion authorized above, the Applicant shall pay into court at the time the motion is commenced the sum of $2,500.00 as security for costs. She shall provide the Respondent with proof that this sum has been deposited, at the same time she serves him with her motion materials.
[67] If the Applicant elects to initiate no further motions prior to December 31, 2016, thereafter she may initiate a request that the requirement for security for costs be reviewed. The onus shall be on the Applicant to satisfy the court that the order for security for costs should be changed. In support of any such request, the Applicant should provide a daily summary (from the date of this order) setting out all efforts she has made to obtain employment, generate income, or otherwise satisfy her obligation in relation to posting security for costs. She shall also provide a complete summary of any additional professional assistance or counselling she has received.
[68] This order for security for costs does not change or limit any other costs determination made by this court.
[69] The Applicant shall pay to the Respondent costs in relation to this motion fixed in the sum of $500.00, inclusive of HST and disbursements, payable prior to the Applicant returning to court with any motion.
[70] If any clarifications or residual items need to be dealt with, the parties may arrange a time to appear before me.
Pazaratz, J.
Released: June 9, 2015
COURT FILE NO.: F2172/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LYUBOV IZYUK
Applicant
- and -
SERHIY BILOUSOV
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: June 9, 2015