COURT FILE NO.: (Brampton) FS-19-96297

DATE: 2022-12-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.L.S., Applicant

AND:

B.H.S., Respondent

BEFORE: Conlan J.

COUNSEL: Ms. Madhulika Dutt, for the Applicant

B.H.S., Self-Represented

HEARD: December 13, 2022

ENDORSEMENT on Motion: security for costs

I. Introduction

[1] The Applicant wife, M.L.S., moves for an order that the Respondent husband, B.H.S., post security for costs in an amount and in a form to be determined by the Court. When pressed, counsel for the Applicant suggested an amount in the range of $50,000.00, which represents total partial indemnity costs for the whole case, including an estimated three-day trial.

[2] The motion is contested by the Respondent, who represents himself.

[3] The motion was argued at Court as a short matter on December 13, 2022.

[4] The nature of the proceeding is as follows. The Amended Application by the wife, issued on October 21, 2019, asks for a divorce, child support, and an order for no spousal support, an order that there be no equalization payment owing, and other relief.

[5] In his Answer dated January 16, 2020, the husband makes several claims of his own: a divorce but on terms, the revocation of certain orders on the basis that they were obtained fraudulently, an order for no child support, an order for spousal support in his favour in the amount of $61,000.00 over two years, an order that the parties’ daughter be required to testify regarding an incident that led to the husband being the subject of a peace bond, an order that all of the other children also be required to testify about “property and maintenance” matters, an order that the wife’s friend be required to testify about the incident that led to the husband being the subject of the peace bond, an order that three police officers be required to testify about the wife’s “KGB statement” to the police and other matters related to the incident that precipitated the peace bond, an order for equalization of property, and other relief.

[6] The Respondent’s pleading, excluding attachments, is some 110 paragraphs and 34 pages in length.

[7] In May 2020, the Respondent also commenced a separate civil action against the Applicant. In that proceeding, the husband seeks $250,000.00 in general damages, special damages, some of the same relief sought in his Answer, and relief related to the peace bond.

II. Analysis and Decision

[8] For the following reasons, the Applicant’s motion is granted but in an amount that is substantially less than what was suggested by her counsel.

[9] This Court’s authority to make the order requested is found in subrule 24(13) of the Family Law Rules (“FLR”). That provides as follows.

(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:

1. A party habitually resides outside Ontario.

2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

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.

5. A statute entitles the party to security for costs.

[10] As can be seen, the order is discretionary and can be premised on any one of the five factors listed.

[11] The amount of the security to be posted, its form, and the method of giving it, are all in the discretion of the judge: 24(14) FLR.

[12] An order for security for costs in no way ends the case. It simply requires that the party comply with the order before being permitted to take any further step in the proceeding, except to appeal the order, unless a judge directs otherwise: 24(15) FLR.

[13] An order for security for costs may be varied, at any time, by a subsequent order, in terms of the amount of the security, its form, and the method of giving it: 24(17) FLR.

[14] A party that does not comply with an order for security for costs risks having their case dismissed or their pleading struck: 24(16) FLR.

[15] The “nuisance standard”, item number 4 under 24(13) FLR, is likely less onerous than the “frivolous or vexatious” standard under 56.01(1)(e) of the Rules of Civil Procedure. This Court adopts the comments of Senior Justice Steinberg in His Honour’s decision in F.(J.) v. C.(V.) (No. 5), 2001 26439 (ON SC), at paragraphs 10 and 11, set out below.

[10] In considering whether an action is “frivolous or vexatious” under rule 56.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, (a standard that appears to be more onerous than the “nuisance standard” under the subrule 24(13) of the Family Law Rules), Justice David W.H. Henry, in the case of Lang Michener Lash Johnston v. Fabian (1987), 1987 172 (ON SC), 59 O.R. (2d) 353, 37 D.L.R. (4th) 685, 16 C.P.C. (2d) 93, [1987] O.J. No. 355, 1987 CarswellOnt 378 (Ont. H.C.), laid down the following principles, which may assist the court in making or not making such a finding. They are as follows (at paragraph [19]):

(a)

the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b)

where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c)

vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d)

it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e)

in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f)

the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g)

the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[11] Paragraph (e) is of some relevance, that is to say that, in determining whether the applicant’s proceedings in this case are a nuisance, the court must look at the whole history of the matter, and not just whether there was originally a good cause of action.

[16] In the view of this Court, the Applicant has established on a balance of probabilities that there is good reason to believe that the husband’s claims, many of them, are a waste of time or a nuisance and that the husband does not have enough assets in Ontario to pay costs, and thus, the order sought should issue on the basis of item 4 under 24(13) FLR.

[17] In terms of the Respondent’s assets, this Court accepts the evidence of the wife that the husband does not have any assets in Ontario (paragraph 28 of the wife’s affidavit sworn on November 24, 2022).

[18] That fact is not disputed by the husband. Rather, at paragraph 22 of his responding affidavit on the motion, he simply asserts that paragraphs 28 to 39 of the wife’s affidavit, which paragraphs deal with the husband’s foreign assets, demonstrate that he has enough assets to pay costs.

[19] In terms of the Respondent’s arguments against the notion that many of his claims are a waste of time or a nuisance, with respect, despite his articulate presentation to this Court and his obvious intelligence, the husband did not really address the point.

[20] Most of his submissions on the motion, both written and oral, focus on his arrest and the peace bond. I appreciate that the husband feels that he was the victim of wrongdoing by the wife. That the complaint and the arrest was a set-up to have him deported from Canada. That the Applicant committed perjury, as he said in his oral submissions.

[21] These allegations, however, cannot be used to hijack the family law proceeding. If the husband wants to pursue them, then he should prosecute his existing civil action.

[22] The husband’s reliance on the decision of Sheppard J. in Huismans v. Black, 2000 22734 (ON SC), is, with respect, misplaced. That decision does not support the Respondent’s assertion that he has no choice but to vociferously pursue all of his claims, even those that deal with the criminal proceeding, within the context of the matrimonial case.

[23] In that case, the spouses resolved all of their family court issues by way of minutes of settlement. At the time that the minutes were signed, the husband was aware of what he considered to be defamatory statements made to the police by his wife. He did not raise that issue in family court. He did not raise that issue in another court. Instead, more than one year after the settlement in family court, the husband commenced a civil action for, among other things, defamation. In those circumstances, Justice Sheppard held that the husband could have and ought to have brought his claim for damages for defamation before the family court; thus, in the civil action, on a motion brought by the wife, Sheppard J. concluded that the husband’s claim for damages for defamation and injurious falsehood were precluded by the doctrine of cause of action estoppel.

[24] That is not our situation, for two reasons.

[25] First, our husband, unlike Mr. Huismans, has already commenced a civil action against the wife, well before any resolution of the family law issues. There can be no argument by the Applicant down the road that she was not aware of the Respondent’s allegations and was somehow prejudiced by having to endure a subsequent civil proceeding which she could not have reasonably anticipated at the time that she settled the family law case.

[26] Second, our husband is not simply making claims in the context of the family law proceeding that are akin to defamation and/or injurious falsehood but rather ones that amount to an abuse of process in that they are a clear attempt to try the civil action in the family court. For example, why would the court in the context of this Amended Application order that the parties’ daughter, and/or the wife’s friend, and/or several police officers, testify at trial? They would be testifying about something that applies squarely and exclusively to the existing civil action. Those claims are a waste of time. They are nothing but a nuisance in the within proceeding.

[27] Besides, the husband’s reliance on the Huismans, supra decision does not assist him with combatting the wife’s argument, which argument I accept, that even some of the husband’s traditional family law claims are so lacking in merit that they amount to a waste of time or a nuisance. With spousal support, for example, assuming that entitlement is established, it is absurd to think that any judge would order the Applicant to pay to the Respondent more than $30,000.00 per annum in spousal support.

[28] There are two other submissions advanced by the husband that should be commented on.

[29] He submitted that his impecuniosity has been caused by the Applicant, and thus, she cannot now rely on that impecuniosity as a reason to make the order for security for costs.

[30] With respect, the evidence filed on the motion by the husband does not establish that he is impecunious. In fact, his recent Financial Statement shows nearly $350,000.00 worth of real estate assets abroad, with no charges against any of those properties disclosed.

[31] Further, the husband has misinterpreted the wife’s position. The wife is not relying upon the husband’s alleged impecuniosity as a reason to make the order for security for costs. What she is saying is that the husband’s alleged impecuniosity is not a reason to deny the order.

[32] Finally, the Respondent asserts that it is unusual to have him, as the responding party in the family law proceeding, be the subject of an order for security for costs. While it is true that such an order is more commonly made against parties that start a case, 24(13) of the FLR applies to any “party”. Moreover, the husband is not simply responding to the Applicant’s claims. He is a claimant himself, as seen from the above discussion of the pleadings in this case.

[33] This is an appropriate case for an order for security for costs.

[34] In my view, however, $50,000.00 is far too much. It is too early to estimate the length of the trial. It is no incentive to the wife to be reasonable herself to order now that the husband pay into court her partial indemnity costs for the entire case.

[35] This Court orders that the Respondent shall, by certified cheque, money order, or bank draft payable to “The Accountant of the Superior Court of Justice”, pay into court as security for costs in Brampton Superior Court of Justice file no. FS-19-96297, the sum of $25,000.00.

[36] This Court orders further that 24(15) FLR shall apply.

[37] This Court orders further that no motion by the Applicant under 24(16) FLR shall be brought before, at the earliest, 90 calendar days have elapsed from December 15, 2022.

[38] If the Applicant wishes to pursue costs of the motion, she shall file her submissions in writing within 30 calendar days of today. The Respondent shall file his costs submissions within 30 calendar days of his receipt of the wife’s submissions. No reply is permitted. Each submission shall be limited to two pages in length, excluding attachments.

Conlan J.

Date: December 14, 2022