Superior Court of Justice – Ontario
COURT FILE NO.: FC-14-1977-3 DATE: 2020/09/23
RE: Anneke Joyce Kooistra, Applicant AND Eric Daniel Joseph Rochon, Respondent
BEFORE: Mr. Justice Stanley J. Kershman
COUNSEL: Mary Cybulski, for the Applicant Eric Letts, for the Respondent
HEARD: September 4, 2020 by Zoom
ENDORSEMENT
Introduction
[1] A motion was bought by the Applicant (“Mother”) seeking security for costs against the Respondent (“Father”) in the amount of $25,000 and for ancillary relief as set out in the Notice of Motion. The Father opposed the motion but did not file any responding materials or a factum.
Factual Background
[2] The parties lived together for six years and have two children, Zachary Rochon, born July 27, 2011, and Xavier Rochon, born March 11, 2014.
[3] The parties separated shortly after Xavier’s birth in 2014 and the children have resided primarily with the Mother in Ottawa since that time.
[4] The Mother is a nurse working at a local hospital and lives in the west-end of Ottawa near the children’s school.
[5] The Father is a federal civil servant making approximately $86,800 per annum. He moved to Masson, Quebec in 2017 to reside with his spouse and her two children. Prior to his move, the Father lived near the children’s school in Ottawa. The Father did not consult the Mother about the move, although he eventually did tell her.
[6] After separation, on September 2, 2014, the Mother commenced a family law application. The Office of the Children’s Lawyer (“OCL”) became involved and advised that joint custody was not workable at that time and recommended that the Mother have sole custody.
[7] Litigation proceeded, and on the eve of trial in May 2016, the Father terminated his lawyer and attended at Assignment Court requesting an adjournment. That request was denied.
[8] After two lengthy, last-minute settlement conferences, the parties signed Minutes of Settlement, which included joint custody despite the OCL recommendation.
[9] On July 25, 2016 the Minutes of Settlement were converted into a final order, which included the following:
a. Joint custody of the children with primary residence to the Mother;
b. A graduated parenting schedule continuing into 2017 increasing the Father’s time with the children as they got older;
c. Table child support of $1,035 per month, paid by the Father to the Mother; and
d. Review provisions for parenting time to be reviewed in March 2018.
[10] On December 12, 2016, less than five months after the final order and before the graduated parenting schedule had been completed, the Father commenced a Motion to Change the children’s parenting schedule to equal time between parents.
[11] The Father took issue with the Mother having a back-up care provider for the children, even though this had always been the case. He also wished to change child support but withdrew that request prior to the issuance of the Motion to Change because, pursuant to the Family Law Act, he was required to wait six months before bringing a request for such relief.
[12] In February 2017, at the first appearance for the Motion to Change, the Father served a brief exceeding 200 pages, asked that the matter be put over to a case conference and requested a final determination of the matter. The judge found the Father’s behaviour to be unreasonable and awarded the Mother $250 in costs.
[13] In 2017, despite his income and despite being self-represented, the Father was in arrears of child support to the extent that the Family Responsibility Office (“FRO”) had to take legal action against his home.
[14] In May 2017 the parties had a settlement conference with Kershman J. who, due to time constraints, read the parties’ agreement into the record.
[15] Apparently, the parties could not settle the order because the Father refused to allow the transcript to be released.
[16] On November 2, 2017 the Father brought a second Motion to Change asking for child support to end effective April 1, 2016 (prior to the date of the final order). The Motion to Change also included a constitutional challenge. The motion failed.
[17] In November 2017 the Father brought an urgent motion asking for the right of first refusal to care for the children. The Court found that the matter was not urgent. The Father failed to set the motion down on a regular motion date.
[18] A trial was held over the course of six days in January and February 2019 before Audet J., who wrote a lengthy decision. The Mother was successful on all major issues at trial. The Father was found to lack credibility.
[19] In addition, the Mother was granted over $58,000 in costs, payable by the Father.
[20] On April 11, 2019 the Father filed a Notice of Appeal which included 14 grounds of appeal.
[21] The Father abandoned the appeal without any explanation and without even a letter stating that he was not proceeding.
[22] The Father brought a third Motion to Change in February 2020, seeking various relief. The major relief sought was that he have sole custody of the children, termination of his child support and that neither party pay child support when the Father had sole custody.
Issue: Should the Father be required to pay security for costs in the amount of $25,000?
Mother’s Position
[23] The Mother seeks an order for security for costs in the amount of $25,000. She argues that, throughout the litigation, the Father’s behaviour and attitude has been patently unreasonable, both in regard to procedure and towards the Mother.
[24] The Mother cites, as an example, that while the Mother sought to have the children enrolled in counselling, the Father’s position was that the Mother should simply improve her parenting skills. The counselling issue was recently argued before Audet J. with the Mother being successful. The Court ordered that the children proceed to counselling.
[25] The Mother argues that the security for costs remedy is used to prevent a litigant’s pursuit of another person in Court without regard to the merits of their claim and to prevent the legal costs that Respondents would likely incur to defend the case.
[26] The Mother relies on Rule 24(13) of the Family Law Rules. She argues that at least two of the grounds under that rule are applicable.
[27] In addition, the Mother argues that, under Rule 24(13)(4), she does not need to prove that the action is actually a waste of time or a nuisance, but only that there is “good reason to believe that” the action is a waste of time or a nuisance. She relies on the case of Wreggbo v. Vinton, 2013 ONCJ 250, 2013 CarswellOnt 5833 at para. 11.
[28] The Mother argues that the Father already has two costs awards against him from two separate judges and a third that is pending.
[29] The first costs award was in relation to the case conference where the judge awarded costs of $250.
[30] The second costs award from the trial was over $58,000 of which $8,761 related to child support.
[31] The Father declared bankruptcy on July 11, 2019, one day after the signed costs order was received. Only $8,761 of the costs award survived bankruptcy because it dealt with support issues and is still required to be paid.
[32] At a recent counselling motion Justice Audet made an endorsement on August 18, 2020, which found that the Mother is presumptively entitled to costs for the aforementioned motion.
[33] The Mother argues that the Father does not have any assets in Ontario to pay the costs. She relies on the case of Perron v. Perron, 2011 ONCA 776, 345 D.L.R. (4th) 513 at paragraphs 23 and 24.
[34] The Mother argues that the Father’s bankruptcy has materially improved his financial position and materially worsened hers.
[35] The Mother argues that, because of the Father’s major credibility issues as demonstrated at the last trial, the fact that the Father’s Motion to Change will require cross-examinations and given the costs of the previous trial, it is very likely the Mother’s costs will exceed $25,000.
[36] The Mother argues that the order for security for costs is just, as she is already in debt for the legal fees she has paid for trial and now, due to the Father’s bankruptcy, most of those cost awards are no longer recoverable.
Father’s Position
[37] The Father argues that, pursuant to paragraphs 21 and 22 of the Audet J. Order dated March 11, 2019 he is permitted to seek relief, including a change in the amount of child support.
[38] The Father argues that he was following the wording of the Audet J. Order when he brought the Motion to Change.
[39] The Father also argues that his bankruptcy is a material change in circumstances, and he is therefore justified in bringing the Motion to Change.
[40] In addition, the Father argues that he is not in arrears for the balance of the costs order which survived the bankruptcy of $8,761, because he has made an arrangement with FRO to pay off those costs over a period of time.
[41] The Father argues there are important issues that must be dealt with by the Court and that by requiring him to pay a security for costs award those issues will not be dealt with.
The Law
[42] Family Law Rule 24(13) reads as follows:
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. O. Reg. 114/99, r. 24 (13).
Analysis
[43] Paragraphs 21 and 22 of the Audet J. Order, dated March 11, 2019 read as follows:
Either Mr. Rochon or Ms. Kooistra may seek an immediate change in child support if there is a material change in the condition, means, needs or other circumstances of Mr. Rochon, Ms. Kooistra, or the children that would affect child support.
A material change in the condition, means, needs or other circumstances of Mr. Rochon or Ms. Kooistra or the children may be foreseen or unforeseen, foreseeable or unforeseeable, and may include but is not limited to:
a. A material change in either Mr. Rochon or Ms. Kooistra’s financial position;
b. A material change in either Mr. Rochon or Ms. Kooistra’s income;
c. A change causing undue hardship for either Mr. Rochon, Ms. Kooistra, or the children;
d. A change in a child’s special or extraordinary expenses;
e. A change in a child’s residence that affects the amount of child support under the Guidelines;
f. A child turning 18 years of age; or
g. A change in the child’s need for support.
[44] The Court agrees that, as set out in paragraph 21 of that order, either the Mother or the Father can bring an immediate change in child support if there were a material change in circumstances.
[45] The Father claims his bankruptcy is a material change in circumstances.
[46] The Father filed for bankruptcy on July 11, 2019. He was discharged from bankruptcy approximately 9 months later. Based on the bankruptcy documents filed, he had debts of approximately $108,000, of which approximately $57,000 was owing to the Mother.
[47] Of the $57,000, approximately $8,761 related to child support and therefore survived the bankruptcy.
[48] According to the evidence, as of March 1, 2020, the Father is in arrears of child support of $4,819 (which would include costs).
[49] The Court is not aware how much of those costs have been repaid through FRO, or how long it will take to pay off the balance, although a payment arrangement has been made.
[50] A distinction must be made regarding a material change in circumstances that makes a person worse off as opposed to a material change in circumstances that makes a person better off.
[51] In this case, the Court finds that the Father is better off after his bankruptcy, having shed over $100,000 of debt. He still earning the same amount of money ($86,800 per year), yet has none of the $100,000 (approximately $108,000 minus approximately $8,761) of debt to pay. The Court does not find that this material change in circumstance will negatively affect his ability to pay child support.
[52] The Mother, on the other hand, was put in a worse financial position because of the Father’s bankruptcy in that she could not collect approximately $48,500 of costs the Father was ordered to pay to the Mother.
[53] A review of Rule 24(13) reveals that there are several factors that the Court may consider if applicable. The Court finds that the applicable factors are as follow:
A party ordinarily resides outside of Ontario;
A party has an order against another party for costs that remains unpaid in the same or another case; and
There is cause 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.
[54] A review of these factors follows.
1) The Father ordinarily resides outside of Ontario
[55] There is no question that the Father has lived in the province of Quebec since at least 2017. The Court makes a finding to this effect. This satisfies the first factor under Rule 24(13).
2) There are outstanding costs orders against the Father
[56] The evidence is that the Father has costs orders that remain unpaid in court file FC-14-1977, notwithstanding the fact that it may be a sub file of this file. The outstanding cost orders relate to the $250 for the case conference and the $8,761 awarded at trial for child support. In addition, based on the endorsement of Audet J. dated August 18, 2020, there will be a third costs order against the Father, which has not yet been released.
[57] The Court finds there is at least one outstanding costs award that has not yet been paid in full. This satisfies a second factor under rule 24(13).
3) There is cause to believe the motion is a waste of time or is a nuisance and that the Father does not have assets in Ontario to pay costs.
[58] In relation to this factor the Court notes that, under Rule 24(13)(4), the Mother need only prove that there is “good reason to believe” the action is a waste of time or is a nuisance. In the case of Wreggbo v. Vinton, 2013 ONCJ 250, 2013 CarswellOnt 5833, the Court stated at paragraph 11:
In relation to the latter basis, the subrule allows either a showing of good reason to believe that there is either nuisance afoot or a wasting of the court’s time. As a matter of common sense, a nuisance claim is one so devoid of merit that it is a waste of the court’s time. It wholly undercuts the primary objective of the Rules to allow a “nuisance claim” that is by its nature a waste of time, to go forward to trial with a security for costs order “hobbling” the trial court, as Superior Court Justice Quinn characterized the dilemma in the Stefureak case. See Stefureak v. Chambers, 2005 7890 (ON SC). [emphasis omitted]
[59] According to the evidence, the only changes the Father alleges are as follow:
He is bankrupt; and
The Mother is neither consulting him in accordance with the order nor cooperating. This is the same allegation he made repeatedly in previous proceedings. The Court found that this type of claim was without merit in previous proceedings.
[60] A counselling motion was heard by Audet J., and in the fourth paragraph of her August 18, 2020 reasons, she noted, “[a]fter having allowed the parties through their lawyers to share their views on this, it became clear that no consultation process would ever satisfy the father until the mother essentially back down and agreed to his position on the matter. Unfortunately for the father, this is exactly why each parent was granted ultimate sole decision-making authority on specific issues.”
[61] The Court notes that the issues of custody and child support were previously litigated and decided by the court. Then, the recent counselling motion was decided in favour of the Mother.
[62] The Father had the opportunity to adduce evidence at the counselling motion in support of his allegation that the Mother does not consult and excludes him. However, he did not adduce any evidence, and in fact, did not file any materials.
[63] Based on the aforesaid, the Court also finds that there is good reason to believe that this Motion to Change is either a waste of time or a nuisance.
[64] In coming to this conclusion, the Court relies on the decision by the Ontario Court of Appeal in Perron v. Perron, 2011 ONCA 776, 345 D.L.R. (4th) 513 at paragraphs 22, 23 and 24:
[22] The trial judge was critical of the appellant’s conduct of the trial and found that the appellant added unnecessarily to the length and cost of the trial. The appellant avoided his liability for the costs of the trial attributable to the custody issue that is the focus of this appeal. The respondent must resort to the Family Responsibility Office to secure payment of the appellant’s support obligations. The appellant’s PADL grant and the pro bono services of his counsel free him from any of the expense of advancing an appeal based upon a constitutional issue that I consider likely to fail.
[23] In my view, given the appellant’s conduct and the low prospect of success, it would be very unfair to expose the respondent to the risk that the appellant will not satisfy the costs of this appeal.
[24] I am not persuaded by the material filed by the appellant that he is impecunious and that an order for security for costs would deny him access to the court. The appellant is employed as a teacher and both he and his new partner earn a substantial income. Apart from his support obligations, he is essentially debt-free as a result of his bankruptcy.
[65] In addition, there is no evidence that the Father has any assets in Ontario to satisfy a costs award.
[66] In the present case, there is no evidence the Father is impecunious. He earns $86,800 as a federal civil servant. Apart from his child support obligations, and his car and motorcycle loans he is debt-free. The loans for the car and the motorcycle were disclosed in his bankruptcy Statement of Affairs.
[67] Therefore, the Court makes a finding under Rule 24(13) that there is good reason to believe that the Father’s Motion to Change is a waste of time or a nuisance.
[68] Even if the court is in error about the outstanding costs awards, the fact is that the Father does not reside in the Province of Ontario and that there is good reason to believe that this Motion to Change is either a waste of time or a nuisance. These are sufficient factors to make the security for costs award.
[69] Based on the aforesaid findings, the Court uses its discretion and orders that the Father pay into Court, as security for costs, the sum of $20,000 as opposed to the $25,000 requested by the Mother. The Court finds that, based on the Father’s bankruptcy and his subsequent ability to wipe out approximately $100,000 worth of debt, he has the ability based on his income to pay this amount into Court as security for costs.
Conclusion
[70] The Court orders that the Father pay to the Court the sum of $20,000 as security for costs for the proceedings in Court File FC-14-1977.
[71] For greater certainty, the Court orders that, until such time as the Father has complied with the security for costs order, Rule 24(15) remains in effect, namely that the Father is not to take any step in this case, except to appeal from this order, unless a judge orders otherwise.
Costs
[72] No cost outlines were provided. The information in relation to costs was provided to the Court at the motion as set out below.
[73] The Mother claimed costs on a full indemnity basis of $8,607.78 including HST and disbursements.
[74] The Father claims costs of $1,750 plus HST.
[75] The Mother was successful on the motion. As such, she is entitled to her costs.
[76] Cost outlines based on the aforesaid figures shall be exchanged by the parties within the next 10 days.
[77] This matter will be set for a 20-minute Zoom hearing. Each party will have 10 minutes to argue their position as to costs. The date and time will be set by the Trial Coordinator.
[78] Order accordingly.
Mr. Justice Stanley J. Kershman
Date: September 23, 2020
COURT FILE NO.: FC-14-1977-3
DATE: 2020/09/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Anneke Joyce Kooistra, Applicant
AND
Eric Daniel Joseph Rochon, Respondent
BEFORE: Mr. Justice Stanley J. Kershman
COUNSEL: Mary Cybulski, for the Applicant
Eric Letts, for the Respondent
ENDORSEMENT
Kershman J.
Released: September 23, 2020