Court File and Parties
Oshawa Court File No.: FC-10-212-00 Date: 2020-04-08 Superior Court of Justice - Ontario
Re: Kelly Patricia Matijcio, Applicant And: Paul Alexander Killick, Respondent
Before: The Honourable Mr. Justice R.E. Charney
Counsel: Kelly Patricia Matijcio, Self-Represented William H. Abbott, Counsel for the Respondent
Heard: In-Writing
Endorsement
[1] The respondent brings this motion for an order to permit this motion to proceed on an urgent basis pursuant to Notice to the Profession dated March 15, 2020 and subsequent updates. The Notice specifies that such matters may include “dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order”.
[2] The respondent’s intended motion is for an order that the applicant “post security for costs of $75,000 or such other amount as the court deems appropriate for the upcoming trial of this matter”.
[3] The respondent’s Notice of Motion states that this matter is urgent because the applicant is selling her house with a closing date of April 16, 2020. The respondent’s Notice explains that the applicant has two outstanding costs orders against her (the amount outstanding is not stated), but acknowledges that these outstanding costs orders will be satisfied when the property closes because the respondent has registered writs of execution.
[4] The respondent argues that the motion is urgent because the applicant has “failed to comply with almost every order” made in this proceeding, including the failure to serve updated financial statements. It is also alleged that in September 2016, the applicant unlawfully took $35,000 from the respondent and lent it to her boyfriend.
[5] The Notice states that without the security for costs order, the respondent “will never be able to recover the large sum of money he is owed plus costs”.
Analysis
[6] The only issue at this preliminary stage is whether the motion is urgent.
[7] Given that all trials have been suspended, it is difficult to see how a motion for security for costs could possibly be urgent.
[8] Security for costs is governed by Rule 24(13) of the Family Law Rules, which provides:
Order for Security for Costs
(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.
[9] An order for security for costs under Rule 24(13) is not the same thing as a non-depletion order under s. 12 of the Family Law Act, R.S.O. 1990, c. F-3, and is not subject to the same considerations or analysis.
[10] The only apparent basis for the respondent’s claim for security for costs in this proceeding is Rule 24(13) 2, since the respondent alleges that the applicant has two outstanding costs orders against her, although the respondent then acknowledges that these outstanding costs order will be paid when the sale of the house closes because the respondent has registered writs of execution against the property.
[11] If the outstanding costs orders are paid on closing, the basis for the respondent’s claim for security for costs is, at best, unclear. The basis for urgency is even less clear.
[12] The purpose of security for costs is to provide the moving party with security for their legal costs should they ultimately be successful at trial. It is not to provide “execution before judgment” by giving the moving party security for the recovery of any other money allegedly owed. The motion cannot be urgent if the purpose of the motion is to seek security for “the large sum of money” the respondent claims he is owed.
[13] Nor is security for costs available to force the opposing party to file an updated financial statement, unless such failure indicates that “the case is a waste of time or a nuisance” pursuant to Rule 24(13) 4.
[14] Failure to comply with an order to file an updated financial statement may result in one or more of the several orders available under Rule 1(8) (Failure to Obey Order) of the Family Law Rules, which may include an order for costs. The respondent has not, however, brought a motion under Rule 1(8). If an order for costs under Rule 1(8) were made and not paid, that may result in a subsequent order for security for costs under Rule 24(13), but the respondent is not there yet.
[15] In any event, the respondent appears to take the position that the motion is urgent because, after April 16, 2020, the applicant may not have sufficient resources to post security for costs. But, the inability of the applicant to post security for costs does not make the motion urgent. That is because, at this stage of the proceeding, the inability of the applicant to post security for costs can only work to the disadvantage of the applicant, not the respondent. Rule 24(15) and (16) of the Family Law Rules set out the consequences for failing to post security for costs when ordered. They provide:
Effect of Order for Security
(15) 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.
Failure to Give Security
(16) 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.
[16] Generally, security for costs is only urgent if the matter is about to proceed to trial. At that stage the parties are about to incur substantial legal costs, and their entitlement to security for costs must be determined before the trial proceeds. The respondent’s motion material does not suggest that the respondent is about to imminently incur any substantial legal costs. There is no pending trial date, and there will be time to address any motion for security for costs once regular court operations resume.
[17] For these reasons, I conclude that the respondent’s motion for security for costs is not urgent at this time, and the motion is dismissed without prejudice to the respondent’s right to renew the motion once regular court operations resume.