Court File and Parties

COURT FILE NO.: FC-13-370 DATE: 2017/01/12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kristina Pey Applicant – and – Ali Javaheri Pey Respondent

COUNSEL: C. C. Craig, for the Applicant Self-Represented, for the Respondent

HEARD: January 5, 2017

Reasons for Decision

KANE J.

[1] The applicant by motion seeks an order that the respondent post $10,000 to $15,000 as security for costs.

[2] This motion for security is brought in response to the respondent’s motion to suspend, vary and terminate certain provisions contained in the decision of Shelston J. dated April 18, 2016 following a 4 day trial in January, 2016.

[3] Based upon the respondent’s state of unemployment at the time of and since the January 2016 trial, the respondent in his pending motion not before the court today, pursuant to section 37(2) of the Family Law Act and r. 6(e) of the Family Law Rules, seeks:

a) an order suspending in the interim his obligation to pay spousal and child support, retroactive to January 1, 2016;

b) an order to reduce or rescind the arrears of his spousal support indebtedness accumulated during the years 2013 to 2015;

c) an order setting reasonable payment terms of the accumulated debt owing by him to the applicant;

d) an order suspending enforcement proceedings by the Family Responsibility Office in the interim; and

e) variation of a term of the access in the order of Shelston J. dated April 18, 2016.

[4] The applicant points to the failure of the respondent to pay the following court ordered debts:

a) $7,336 of child support arrears, pursuant to the order of this court dated September 25, 2015;

b) nonpayment of his equalization payment in the amount of $53,675.11, ordered by the court on April 18, 2016;

c) nonpayment of the June 8, 2016 cost awards by Shelston J. of $8,000 as to a motion before Maclean J. and $25,000 for the January 2016 motion and trial;

d) retroactive spousal support in the amount of 16,597;

e) ongoing spousal and child support which total of $37,413 as of December 21, 2016; and

f) a cost award dated September 20, 2016 in the amount of $500.

[5] The applicant:

a) points to the respondent’s failure to pay any spousal or child support, since September 2016; and

b) submits that the respondent’s motion to vary amounts to a collateral attack on the determinations made in the January 2016 trial, which have not been appealed.

[6] The applicant’s motion for security for costs is brought pursuant to r. 24(13)(2) of the Family Law Rules, which states a court may order security for costs that is just for reasons which include the non-payment of prior cost awards.

[7] The respondent’s motion to vary is based on his continuing unemployment and the resulting inability to pay the equalization payment, support arrears and ongoing spousal and child support.

[8] R. 2(3) of the Family Law Rules as to the necessity of dealing with cases in a just manner, refers to the need to consider the importance and complexity of the issues involved as well as the utilization of court resources in an efficient manner.

[9] The court in Kaiser v. Wein, 2014 ONSC 752, para 28, held that the best way to balance the competing interests of a party’s need for judicial determination, the requirement that a party comply in respect prior court ordered determinations and to prevent court proceedings from being used in a repetitive, excessive manner; was to require the posting of security for costs in a family law proceeding.

[10] The court in Clark v. Clark, 2014 ONCA 175, paras 43 and 44, indicated that security for costs is generally intended as resources that will be readily available to the party ultimately awarded costs of the pending proceeding. That court indicated that placing a mortgage on a residential property would not result in immediate liquidity to the mortgagee. It is not contested that the respondent at this moment cannot financial qualify and obtain mortgage financing from an institutional lender.

[11] The applicant points to the pending costs on this variation motion, which will include a case conference, a settlement conference, possibly her motion for summary judgment and possibly oral testimony on the return and argument of the respondent’s motion.

[12] At this point, the court must deal with known factors, being the respondent’s motion to vary. If argument thereof is limited to the legal issues involved, rather than the tortured history of this relationship, I anticipate this motion may be argued in one day.

[13] Given the nonpayment of ongoing support and the fact that the respondent’s motion to vary in some respects appears to be a collateral attack of existing court determinations; this is an appropriate case to order security for costs.

[14] The current unemployment of the respondent has to be balanced by the statement of assets contained in his August 25, 2016 Financial Statement wherein he reports net equity from 2 pieces of real property of some $568,000, $120,900 of RRSP mutual funds and a 2015 Honda Pilot which he states is fully paid for.

[15] The respondent is ordered to pay $10,000 into court as security for costs.

[16] Pursuant to R. 24(15), the respondent’s motion to vary may not proceed until he has paid the security for costs as ordered herein. In the result, the requirements to file a case conference brief and attend a case conference on January 13 and 20, 2017, respectively, are cancelled and will have to be re-scheduled.

[17] Given the applicant’s success, the respondent is ordered to pay her costs of this motion within 30 days in the amount of $800, inclusive of tax and disbursements.

Mr. Justice Paul Kane Released: January 12, 2017