Court File and Parties
Court File No.: FD151/16 Date: September 7, 2018 Superior Court of Justice – Ontario Family Court
Re: John Anthony Shelley, applicant And: Josephine Anne Shelley, respondent
Before: MITROW J.
Counsel: Monique Rae Bennett for the applicant Jordan D. McKie for the respondent
Heard: September 5, 2018
Endorsement
[1] The applicant brings a motion for security for costs. The applicant seeks: an order compelling the respondent to disclose the name of the lawyer who is closing the sale of her home; the issuance of a certificate of pending litigation against her home; and an order that the net proceeds from the sale of her home remain in trust until the trial costs are determined.
[2] For reasons that follow, the motion is dismissed.
[3] On August 7, 2018, I released reasons for judgment after trial. The sole issue was the respondent’s claim for spousal support pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] to increase both the quantum and duration of spousal support payable by the applicant pursuant to an existing separation agreement. The respondent’s claim was dismissed, as was the applicant’s motion for a non-suit.
[4] The only remaining issue before me is costs. The parties were granted time limits to file written costs submissions.
[5] While the trial judgment was under reserve, the respondent sold her home for $405,500, substantially more than the value she ascribed to her home at trial. The sale is closing late September 2018 and there will be insufficient time to receive written costs submissions and to render a costs decision prior to closing.
[6] The applicant points to various negative findings made against the respondent at trial as to credibility. He believes the respondent has sold her home “in an effort to hinder” his ability to collect on any potential costs order. He submits that as the successful party on the issue of the spousal support claim, that he is likely to receive a costs award. He deposes that his legal fees are $200,000.
[7] The respondent deposes that she is gainfully employed in the insurance industry, pays her debts, has a good credit rating, holds a Registered Insurance Broker of Ontario licence and a Chartered Insurance Professional designation.
[8] The respondent further deposes that her 1950s home is on a large lot, that she no longer needs the outside space and that she wishes to purchase a newer home with less maintenance.
[9] It was the respondent’s further evidence that she was not really aware of the value of her home until it was listed for sale. In an attempt to purchase a new home, the respondent so far has “bid” on two properties listed in the low $330,000 range that were sold to other purchasers well above asking price. The respondent submits she wishes to substitute her current home for another one.
[10] The enumerated grounds to be met for an order for security for costs are set out in r. 24(13):
24(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.
[11] In Izyuk v. Bilousov, 2015 ONSC 3684 (S.C.J.), Pazaratz J. set out the analysis for an order for 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 (Ont. C.A.). 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 (Ont. C.J.).
[12] The applicant’s belief that the respondent is attempting to hinder a potential costs recovery is, I find, based on the evidentiary record, little more than speculation. The respondent sold her home prior to the release of the reasons for judgment. There is no credible evidence to contradict the respondent’s evidence as to why she is selling her home.
[13] I find that none of the conditions in r. 24(13) are satisfied. The only remotely potential condition that could apply is para. 4: “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.” However, I am unable to find “waste of time” or “nuisance” or lack of assets in Ontario.
[14] The applicant submits in effect that the respondent could “take her money and run” or transfer it to a location where it would not be exigible. Again, on the evidentiary record, that is too speculative.
[15] Also, some context is required. As the respondent submits, she, currently, is “the creditor.” The applicant will owe the respondent over $30,000 annually in spousal support until the end of 2029 pursuant to the separation agreement.
[16] Accordingly, I find that this is not a proper case for security for costs. The applicant’s motion is dismissed.
[17] Each party sought costs of $1,500 all inclusive if he or she was successful on the motion.
[18] The applicant shall pay costs to the respondent fixed at $1,500 inclusive of HST and assessable disbursements payable at the time that the total costs of this proceeding, including trial, are determined.