Court File and Parties

COURT FILE NO.: FC-09-2171 DATE: 2024/08/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Timothy Ray Covell, Applicant AND: Diane Theresa Covell, Respondent

BEFORE: Justice Engelking

COUNSEL: Julie Gravelle, for the Applicant Rodney Cross, for the Respondent

HEARD: June 25, 2024

Endorsement

[1] The Respondent, Ms. Covell, brings a motion for an order for security of costs, as well as certain other relief.

[2] The Applicant, Mr. Covell seeks an order dismissing Ms. Covell’s motion.

[3] The parties were married on May 16, 1992, and separated on June 16, 2009. Five children were born of the marriage, Alexander Tim Covell, born October 27, 1995; William Covell, born May 13, 1998; Oliver Covell, born May 30, 2000; Logan Covell, born October 24, 2002; and Elaina Covell, born May 11, 2005.

[4] In June of 2011, Mr. Covell moved to Nova Scotia. A Final Order was made by Justice Toscano Roccamo on November 29, 2011, which provided the following:

a. $1,850 per month in child support based on an imputed income of $70,800.00 (par. 3). b. Retroactive child support of $32,815.00 from June 2009 through January 2011 (par. 3). c. $184.00 per month in section 7 expenses (par 3). d. $2,135.00 in arrears of section 7 expenses from June 2009 through January 2011 (par 3). e. $25.00 per month in spousal support (par. 4). f. Costs of $15,000, including all previous costs awards, half to be enforced by FRO (par. 8.)

[5] In August of 2012, Mr. Covell brought a Motion to Change the Final Order of Justice Toscano Roccamo, which was heard in 2014. On March 14, 2014, Justice Kershman issued a Final Order as follows:

a. Child support, based on the Nova Scotia guidelines, is set at $1,360 for 5 children effective July 1, 2013, based on an income of $54,200 (par. 1). b. Tim's income is imputed to $54,000 per year, from December 1, 2011, to June 1, 2013, with child support set at $1,356.00 per month (par 2). c. Section 7 expenses of $184.00 per month shall continue until July 1, 2013; thereafter, the section 7 expenses shall be $47.00 per month (par 4). d. Tim 's request to reduce support and costs ordered is dismissed (pars. 3, 5, and 6). e. Tim shall access his TD locked-in RRSP and withdraw as much as possible to pay towards the FRO or Nova Scotia Maintenance Enforcement Program to apply towards arrears (par 7). f. Arrears of support and/or section 7 expenses are to be paid at the rate of $450.00 per month as of April 1, 2014 (par 9). g. All cost orders to be enforceable.

[6] Shortly after this order was granted, Mr. Covell was laid off from his employment. He brought a Divorce Application in Nova Scotia in 2015, which was dismissed in August of 2015 on a jurisdictional basis.

[7] On November 20, 2016, Mr. Covell brought an Application for Divorce in Ottawa, Ontario, which application is scheduled for trial in the September 2024 trial sittings. In it, in addition to a divorce, Mr. Covell is seeking to change his support obligations based on his loss of employment in May of 2014, stating that since that date his income has fluctuated both up and down. He was also originally seeking relief relating to his parenting time with the parties’ children, however, they are now all over 18 years of age and his request in this regard is no longer relevant.

[8] On February 9, 2023, Justice Carter heard a motion by Ms. Covell seeking a stay of the proceedings and security for costs. Justice Carter found that Mr. Covell did not fail to comply with Justice Kershman’s 2014 order regarding the payment (or enforcement) of the costs order against him. However, he did find that Mr. Covell failed to comply with paragraph 7 of Justice Kershman’s order requiring him to access his TD RRSP to pay as much as he possibly could to FRO or the Nova Scotia Maintenance Enforcement Program (“MEP”) to apply towards his arrears. Justice Carter stayed the application pending the payment of $18,092.11 net of tax, which the parties agreed equalled $13,940.71. The Applicant paid this latter amount to the Respondent, along with costs ordered by Justice Carter by July 21, 2023.

[9] On November 1, 2023, Justice Tellier placed the matter on the next available trial list and granted leave to the Respondent to bring a motion for security for costs prior to trial.

[10] In this motion for security for costs, Ms. Covell references, among other historical factors, the non-compliance by the Applicant with paragraph 7 of Justice Kershman’s order, notwithstanding the findings of Justice Carter and the payment of the agreed upon net amount of $13,940.71 in July of 2023.

[11] Mr. Covell seeks to have his application heard as it is his position he has likely overpaid support/costs due to several factors: first, the order of Justice Kershman which required him to pay $450 per month towards “all arrears”, including support and costs, does not differentiate between what was to be directed to the payment of support arrears and what was to be directed towards the payment of costs arrears; second, his income has fluctuated over the years in question (2014 to present) and he has likely been overpaying support; third, the children have aged out of support, and while some adjustments have been made based on continuing entitlement as children of the marriage (including by interim order of Justice MacEachern on November 16, 2021), it is unclear whether all necessary adjustments have been made in relation to the applicability of table support (and their end dates) for the children; fourth, the children’s entitlement to s. 7 contributions by Mr. Covell are unclear (as is his proportionate amount based on income adjustments); and finally, he disputes that Ms. Covell remains entitled to spousal support.

[12] Subrule 24(13) of the Family Law Rules, O.Reg. 114/99 as am, provides:

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:

1. A party habitually resides outside of Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same 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.

[13] The main purpose of an order for security of costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred and that security for costs is not intended as a roadblock for a person who has a genuine claim. (Izyuk v. Bilousov, 2015 ONSC 7476 at paragraphs 39 and 40).

[14] There is no dispute that Mr. Covell lives outside of Ontario and has done so since 2011.

[15] To the extent that Ms. Covell has an order against Mr. Covell for costs which remains unpaid, it is that of Justice Kershman which, as indicated above, does not differentiate support arrears from costs. Ms. Covell asserts that $2,559.29 in costs, which includes interest on same, remains outstanding. Presumably, but uncertainly, this pertains to the costs being enforced as per Justice Kershman’s order. However, until the substance of Mr. Covell’s application is decided, it remains unclear as to whether there is, in fact, a costs order which remains unpaid.

[16] While Ms. Covell strenuously argues that Mr. Covell’s application is a waste of time or a nuisance, this is, in my view, not clear on the record before me. Indeed, the MEP in Nova Scotia took the position, after updating the court order on their file, that Mr. Covell had overpaid on his account and returned some funds to him. MEP’s further position is that until findings of fact are made by the court, no differentiated calculations can be made on Mr. Covell’s arrears (if any).

[17] Additionally, while Ms. Covell equally strenuously argues that Mr. Covell delays or avoids payment and is, and proudly so, a “deadbeat dad”, since moving to Nova Scotia and up to May 3, 2024, Mr. Covell has paid $240,010.72 in support, costs and arrears as recorded by the MEP, some money to Ms. Covell directly (yet to be confirmed by the court), as well as $13,940,71 and $4,500 in costs as per Justice Carter’s order. Most importantly FRO and MEP have been consistently enforcing existing orders against Mr. Covell, and while the pace of payment may not have been satisfactory to Ms. Covell, support/costs are being paid.

[18] For this latter reason as well, that FRO and MEP are enforcing existing orders against Mr. Covell, and as I have indicated have successfully been doing so for many years, the fact that Mr. Covell does not have assets in Ontario to pay a costs order is not relevant. Given that parenting time is no longer an issue, moreover, the trial of this matter will be predominantly, if not exclusively, about support adjustment and arrears. Thus, any costs order made as a result of the outcome of the trial will also be eligible to be enforced by FRO/MEP.

[19] For the above reasons, I decline to make an order for security for costs against Mr. Covell. While Ms. Covell has claimed several other heads of relief in her Notice of Motion, she was granted leave by Justice Tellier only to bring a motion for security for costs of the trial. I, therefore, decline to deal with the remaining requests in her Notice of Motion; these are, moreover, claims Ms. Covell can pursue at trial on a complete and tested record.

[20] There shall be an order as follows:

1. The Respondent’s motion is dismissed.
2. The Applicant is entitled to an order for costs of the motion. If the parties are unable to agree on a quantum by August 30, 2024, they may provide written submissions of no more than three, double-space, 12-point font pages, along with Bills of Costs and Offers to Settle at 10-day intervals from that date, and I will make a decision.

Date: August 20, 2024 Engelking J. Released: August 20, 2024