Court File and Parties

CITATION: Graham v. Sherman, 2017 ONSC 5951

OSHAWA COURT FILE NO.: DC-17-1033

DATE: 20171005

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Graham, Appellant/Respondent on the Motion

AND:

Amy Sherman, Respondent/Moving Party

BEFORE: The Honourable Mr. Justice C.F. de Sa

COUNSEL: Scott Graham, Self-Represented

Amy Sherman, Self-Represented

HEARD: September 15, 2017

ENDORSEMENT

[1] Ms. Sherman has brought a motion for an order for security for costs. Mr. Graham resists the motion arguing that security for costs should only be granted in exceptional circumstances. For the reasons below, I will grant the order sought, and require that Mr. Graham post security for costs in the amount of $8500 before pursuing the appeal any further.

Facts

Background to Appeal

[2] On December 3, 2014, Ms. Sherman obtained full custody of their daughter Alexis, now age 9, in the Superior Court of Justice, Family Court, Orillia. Pursuant to the order of MacKinnon J., Mr. Graham was limited to supervised access of Alexis given that he had Criminal Code charges which involved the alleged sexual assault of two minor children. Those charges have since been stayed.

[3] In November of 2015, Ms. Sherman brought a Motion to Change to further restrict Mr. Graham’s access. Mr. Graham was not following Justice MacKinnon’s order in that he was not using the supervisors approved by the terms of the order. Justice Wood further limited Mr. Graham’s access to the Supervised Access Center (“SAC”). At that time, Justice Wood also noted Mr. Graham in default of $7500 in court costs.

[4] Mr. Graham brought a motion to dispute Justice Wood’s decision restricting access to the SAC, and to transfer jurisdiction to Durham. After hearing submissions, Justice McDermot reinstated the terms of Justice MacKinnon’s original order and held that Mr. Graham could have the issue of access revisited at a case conference at the conclusion of his criminal charges. Justice McDermot also denied his request for a transfer of jurisdiction to Oshawa/Durham.

[5] On December 5, 2016, Mr. Graham brought a Motion to Change in the Superior Court of Justice, Family Court, Oshawa. Mr. Graham sought to have the issue of jurisdiction readdressed. Justice Scott considered the issue of Mr. Graham’s unpaid court costs and held that Mr. Graham could not address the jurisdiction issue without confirmation that all outstanding cost awards against him had been paid.

[6] By May 29, 2017, Mr. Graham had not paid the outstanding costs. On the basis of the unpaid costs, Scott J. dismissed the Motion to Change and imposed a further order prohibiting Mr. Graham from filing any further motions until he tendered receipts to confirm he paid all outstanding cost orders. Scott J. ordered Mr. Graham to pay an additional $2000 in costs in relation to the motion.

[7] This order is the subject matter of the appeal.

[8] On July 7, 2017, Mr. Graham’s criminal charges were stayed for delay. He no longer has any outstanding criminal charges.

[9] Ms. Sherman’s counsel in Orillia is standing by to proceed with the case conference per the direction of Justice McDermot.

Outstanding Cost Orders

[10] On December 2, 2014, Justice MacKinnon ordered costs against Mr. Graham in the amount of $4250 to be paid by February 3, 2015. This cost order remains outstanding.

[11] On December 3, 2014, Justice MacKinnon made a final order for retroactive child support and arrears payable within 60 days for a total of $2350 payable through the Family Responsibility Office. This amount has not been paid.

[12] On December 4, 2014, Justice McGee ordered costs against Mr. Graham in the amount of $1948.69 to be paid forthwith. This cost award remains outstanding.

[13] On February 25, 2016, Justice McDermot ordered costs in the amount of $500 to be paid within 30 days. This cost award also remains outstanding.

[14] Mr. Graham also has an outstanding cost award against him in another jurisdiction. Mr. Graham personally sued Ms. Sherman’s former solicitor in civil court for defamation. The action was dismissed. In that proceeding, Justice Howden also ordered a cost award against Mr. Graham in the amount of $3500. That cost award also remains outstanding.

[15] On March 23, 2017, Justice McGee issued an order stating that “the applicant (Appellant) – Mr. Graham - can take no further steps in this proceeding pending satisfaction of all outstanding costs awards per rule 1(8) of the Family Law Rules”.

[16] As noted above, on May 29, 2017, Justice Scott issued a cost order in the amount of $2000 payable to Ms. Sherman, and a further order prohibiting Mr. Graham from filing any further motions until he tenders receipts to confirm he has paid all outstanding cost orders including the above $2000. This cost award is disputed by Mr. Graham as part of this appeal.

[17] In total, Mr. Graham has amassed, in the Superior Court of Justice both Family and Civil, a total of $14,548.69 + interest in unpaid cost orders against him since 2014.

[18] Legal Aid has taken steps to place a lien against Mr. Graham’s house to recover unpaid costs.

[19] The Family Responsibility Office (FRO) has taken steps to enforce the child support arrears through garnishment.

Analysis

[20] The motion is brought pursuant to rule 61.06(1), which states:

In an appeal where it appears that,

(a) There is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) An order for security for costs could be made against the appellant under rule 56.01; or

(c) For other good reason, security for costs should be ordered, a judge of the appellate court, on motion by the respondent, may make such an order for security for costs of the proceeding and of the appeal as is just.

[21] Courts are hesitant to deprive a worthy but impecunious litigant of the opportunity to have his or her claim adjudicated because of a lack of means. Access to justice is important for every person, not only those who have money. Quite properly, courts should be reluctant to prevent an earnest, but impecunious litigant from accessing justice by imposing an order for security for costs.

[22] At the same time, a court must consider all the circumstances when faced with an application for security for costs. Litigants in a civil or family matter have a right to costs when they are successful in a proceeding. Where, as in the case here, a litigant brings a specious appeal and has a history of not paying costs, such an order should be considered seriously.

[23] Mr. Graham has refused to pay his outstanding costs since 2014. Despite claiming to have adequate assets to cover any costs ordered against him, he chooses not to pay his costs. If Mr. Graham has adequate means to pay the outstanding costs, and has chosen not to do so, he is no longer in the place of an impecunious litigant. Rather, he is a litigant who has wilfully refused to comply with the orders of this Court. And yet he seeks this Court’s assistance. Indeed, it is for this very reason that Justice McGee and Justice Scott ordered Mr. Graham to pay his costs before taking any further steps in this litigation.

[24] In the circumstances here, I find it is appropriate that Mr. Graham post security for costs if he wishes to pursue his appeal. He has refused to pay costs since 2014. Moreover, I see no merit to the appeal. Clearly, the matter is still outstanding in Orillia, and should be addressed by way of case conference there before pursuing another Motion to Change in Durham. In my view, Justice Scott was correct to dismiss the matter.

Disposition

[25] The Appellant is ordered to pay into court the sum of $8500 as security for costs. If the security is not paid into court within 30 days, Ms. Sherman can move to have the appeal dismissed.

Justice C.F. de Sa

Date: October 5, 2017