PETERBOROUGH COURT FILE NO.: FC-18-119
DATE: 20240830
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jason Mooney, Applicant
AND:
Carrielynn Mooney, Respondent
BEFORE: The Hon. Mr. Justice C.F. de Sa
COUNSEL: Aaron Huizinga, Counsel for the Applicant
Shannon Smith, Counsel for the Respondent
HEARD: August 15, 2024
ENDORSEMENT
[1] The Respondent, Ms. Mooney, is seeking that the Applicant post Security for Costs in the amount of $150,000 given the conduct of the Applicant in this matter, his approach to the litigation, and given the concerns relating to his impecuniosity.
[2] The Respondent points to the fact that the Applicant has a number of costs awards outstanding ($2,400). The Applicant has been representing himself. He has gone through 4 lawyers already. The Respondent submits that given the Applicant’s approach to the litigation, the evident delay tactics employed by the Applicant, and the concern the Respondent will be left without compensation for her costs at the end of trial warrants an order for security for costs be made.
[3] If the Applicant fails to post the security ordered, the Respondent requests leave to proceed with a Summary Judgment Motion or Uncontested Trial.
[4] The Applicant submits that he does not have any assets available to post security given his financial circumstances.
[5] He is currently on ODSP, and has no other funds available other than his share of the funds held in trust from the sale of the matrimonial home (Sale Proceeds).
[6] The Applicant takes the position that his share of the Sale Proceeds are sufficient to cover any costs from the trial. Accordingly, it is unnecessary to make the draconian order in the circumstances of this case.
[7] With respect to the Sale Proceeds, the Respondent takes the position that the Applicant has no remaining claim to the funds having regard to the amounts owed by the Applicant for occupational rent, child support, and any other necessary reimbursements to the Respondent.
Analysis
Relevant Provisions
[8] Rule 24(13) of the Family Law Rules Provides:
(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 habitually 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); O. Reg. 42/21, s. 14
[9] The judge must determine the amount of the security, its form and the method of giving it. O. Reg. 114/99, r. 24 (14).
[10] Until the security has been posted, 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. O. Reg. 114/99, r. 24 (15).
[11] In making an order under Rule 24, the court must apply the following analysis:
• The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.
• If the onus is met, the court has discretion to grant or refuse an order for security.
• 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.
• 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 (OCJ).
[12] Security for costs in custody and access cases should only be ordered in exceptional circumstances. In cases involving custody and access, where the best interests of the child are the paramount consideration: Kaiser v. Wein, 2014 ONSC 752; Daviau v. Husid, 2014 ONSC 3188; Parham v. Jiang, 2014 ONSC 3293; Izyuk v. Bilousov, [2015] O.J. No. 2972.
[13] Under subrule 24(16), if a party does not give the security as ordered, then a judge may, on notice, dismiss the party's case or strike out the party’s answer or any other document filed by the party.
[14] Generally, courts do not wish to see the merits of a case determined by a party’s inability to post security for costs: Hodgins v. Buddhu, [2013] ONCJ 137.
[15] As Justice Heather Katarynych described in McGraw v. Samra, 2004 ONCJ 164, 133 A.C.W.S. (3d) 444, [2004] O.J. No. 3610, 2004 CarswellOnt 3556 (Ont. C.J.):
[24] ... The “security for costs” remedy is but one of a number of remedies provided by the rules to stop a case in its tracks until the party veering outside of the rules brings himself or herself into line with them. It is a control on a blithe pursuit of another person in the courts without attention to the merits of the pursuit and the legal costs likely to be incurred by the respondent to defend the case. It is a remedy built on the principle that court proceedings are expensive and time consuming and not to be launched frivolously or without due regard to the impact on the responding party ...
[25] ... As a brother judge has recently pointed out, court proceedings are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and oblivious to the mounting costs of the litigation. See Heuss v. Surkos, 2004 ONCJ 141, [2004] O.J. No. 3351, 2004 CarswellOnt 3517 (Ont. C.J.), per Justice Robert J. Spence ...
[Emphasis added.]
Application to the Facts of the Case
[16] In this case, it is evident that the Applicant does not have sufficient funds to post security.
[17] In my view, it would not be right to prevent the Applicant from presenting his case on its merits. A security for costs order in the form sought by the Respondent is sure to have that effect.
[18] The Applicant now has counsel, and I have confidence that the Applicant will make concerted efforts to keep the matter on track. The Applicant has acknowledged he has issues keeping matters on track when he is not represented.
[19] That said, there are still outstanding costs orders which have yet to be paid. Moreover, there are real concerns that the Respondent will be left without compensation for her costs at the end of trial if she succeeds.
[20] And while the Applicant has counsel now, he has a history of discharging counsel which would inevitably protract matters and create unnecessary delays.
[21] The trial itself is anticipated to take 3 weeks. The Applicant takes the position that the trial should take much less time. I agree that it should take less than 3 weeks.
[22] The Applicant has reasonably abandoned his disclosure motion relating to attendant care benefits. Any necessary disclosure relating to this claim is already in the Applicant’s possession in my view.
[23] With respect to the issue of attendant care, this issue will only be permitted to proceed with leave of the trial judge.
[24] If the Applicant wishes to bring any further motion prior to trial, he will be required to post security in the amount of $5,000.00, or alternatively will require leave of the Court.
[25] The outstanding costs owed to the Respondent are to be paid from the joint account currently containing $5,043.00.
[26] The trial will not be postposed further but will proceed during the sittings in November. I urge the parties to make efforts to narrow issues further prior to trial.
[27] I will receive costs submissions from the parties within 3 weeks of the release of this decision.
Justice C.F. de Sa
Date: August 30, 2024