CITATION: Jabalameli v. Biazar, 2026 ONSC 4655
COURT FILE NO.: FS-21-00021102-0001
DATE: 20260814
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FARAHNAZ JABALAMELI, Applicant
AND:
MEHDI BIAZAR, Respondent
BEFORE: Mr. Justice M. D. Faieta
COUNSEL: Vilma Radfar, for the Applicant
Ash Mazanani, for the Respondent
HEARD: August 11, 2026
ENDORSEMENT
[1] The Applicant wife brings this motion for an order staying the Respondent husband’s motion to change until he pays the outstanding costs orders that total $17,672.33 and an order requiring him to post $10,000 as security for costs in respect of the motion to change.
Background
[2] In 2015, the parties were married in Iran. In 2016, the Applicant wife arrived in Canada. The parties separated in 2020. There are no children of the marriage. Since separation, the Respondent has resided in the United States. The parties obtained a divorce in Ontario on May 13, 2022, and their Iranian divorce on April 8, 2023.
[3] This Application was issued in January 2021. On January 20, 2021, Kimmel J. ordered substituted service and costs of $100. At a Trial Management Conference (“TMC”) held on February 14, 2022, O'Brien J. awarded the Applicant costs of $1,875 for the conferences to date and granted leave to bring a motion for an uncontested trial on account of the Respondent’s failure to comply with disclosure orders. On March 29, 2022, Lococo J. struck the Respondent’s Answer after her failed to comply with disclosure orders. Costs of $3,500 were ordered.
[4] On October 3, 2022, following an uncontested trial, Diamond J. granted a Final Order that required the Respondent to pay spousal support of $606 per month for 42 months commencing October 1, 2022, spousal support arrears of $14,227 as of September 30, 2022, $98,400 in full satisfaction of the Maher (150 Bahar Azadi gold coins), costs fixed at $5,896 and interest at 3 percent per annum. The Order also required the Respondent to forthwith return the Applicant’s U.S. green card.
[5] On October 19, 2022, the parties signed an Agreement whereby the Applicant wife waives her Maher and all financial rights against the Respondent husband. The husband argues he has no further obligations under the Final Order. The wife says she was pressured into signing the Agreement without legal advice. She believed she was only releasing her rights to claims in Iran.
[6] On December 2, 2022, I dismissed the Respondent’s motion to set aside the Final Order and ordered that the Respondent pay costs of $4,500 to the Applicant. The Agreement was not placed in evidence before the Court.
[7] The Respondent has not complied with any of the Costs Orders.
[8] In February 2026, the Respondent commenced a Motion to Change to have this Court set aside the Final Order on the basis that the Agreement waived her rights against the Respondent not only in proceedings in Iran but also under the Final Order.
[9] On June 22, 2026, Nakonechny J. ordered that the trial of the issue of the validity and scope of the Iranian Agreement shall proceed on January 4 and 5, 2027, and that a TMC shall be held on October 30, 2026.
Issues
[10] The Applicant’s motion raises two issues:
(1) Should an Order be granted under Rule 1(8) of the Family Law Rules staying the Motion to Change until the Respondent has complied with the Costs Orders?
(2) Should an Order for Security for Costs in the amount of $10,000 be granted?
Should an order be granted under Rule 1(8) of the Family Law Rules staying the Motion to Change until the Respondent has complied with the Costs Orders?
[11] Rule 1(8) of the FLR states:
If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including:
(a) an order for costs;
(a.1) an order to pay an amount to a party or into court as a penalty or fine;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) a contempt order, if sought under rule 31.
[12] The following principles, described by H. J. Williams J. at para. 53, were approved by the Ontario Court of Appeal in Pye v. Pye, 2017 ONSC 6032, aff’d 2018 ONCA 284, at para. 7:
There is a three-part test for striking the dismissal of a claim or a document under r. ule 1(8) of the Family Law Rules. First, the court must ask whether there has been non-compliance with an order in the case or a related case. Second, the court must ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning the party under r. 1(8), a discretion the case law suggests is exercised only in exceptional circumstances. Third, if the court decides not to exercise its discretion in favour of the non-complying party, it has broad discretion under r. 1(8) in respect of an appropriate remedy. Ferguson v. Charlton, 2008 ONCJ 1 at para. 64).
[13] The onus is on the respondent as the non-complying party and the party seeking relief from the court to demonstrate why it would be appropriate for the Court to exercise its discretion in his favour: Zolnai v. Zolnai, 2026 ONSC 2808, at para. 22.
[14] The Applicant submits that the Respondent resides in the United States, earns a substantial income and has ignored the Costs Orders.
[15] The Respondent submits that this motion is premature given that the validity and scope of the Agreement has not yet been determined and asks that it be adjourned until such issues have been resolved.
[16] I find that there has been non-compliance with the Costs Orders.
[17] In submitting that no sanctions should be imposed, the Respondent relies on his broad view of the scope of the Agreement however, its scope remains to be determined. On the other hand, the Applicant relies on a narrow view of the scope of the Agreement for her view that sanctions should be imposed. I find that it appropriate to sanction the Respondent. The Costs Order remain in effect. However, the effect of the Agreement has not been determined, and the Respondent cannot assume that he will be successful. Further, regardless of the Agreement, the Respondent was non-compliant with some of the Costs Order before the parties entered the Agreement.
[18] Given that the uncertainty surrounding whether the Applicant will be able to repay the Costs Orders if she is unsuccessful on the Motion to Change, I find that it is appropriate to stay the Motion to Change unless the funds representing the total amount of the Costs Orders are paid to the Respondent’s solicitor and held in trust pending further order of this Court.
Should an Order for Security for Costs in the amount of $10,000 be granted?
[19] Rule 24(20) of the FLR states:
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, a nuisance or an abuse of the court process, and that the party does not have enough assets in Ontario to pay costs.
A statute entitles the party to security for costs.
[20] The applicable principles were described by Kraft J. in Shokoufimoghiman v. Bozorgi, 2023 ONSC 6124, as follows:
61 The purpose of an order for security for 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: Izyuk v. Bilousov, 2015 ONSC 3684, at para. 36; C.L.B. v. A.J.N., 2022 ONCJ 313, at para. 36; and Watson v. Watson 2023 ONCJ 435, at para. 17.
62 A further purpose of an order for security for costs is to ensure the existence of a ready source of funds to which a successful litigant may look to satisfy costs of a proceeding that he or she has been compelled to incur. For this reason, security for costs is generally intended to be in a form that is readily accessible to the party ultimately awarded the costs of the relevant proceeding: Clark v. Clark, 2014 ONCA 175, at para. 43.
63 Security for costs orders are not to be made routinely. Orders for security for costs are a blunt instrument. The court must ensure that an order for security for costs is not used as a litigation tactic to prevent a case from being heard on its merits; Hevey v. Hevey, 2023 ONSC 4864 at para. 22. Security for costs is not intended as a roadblock for a person who has a genuine claim. In most instances the merits of a case should not be determined by a party's inability to post security for costs: Bragg v. Bruyere, 2007 ONCJ 515.
64 The principles that courts must apply in determining whether to order security for costs was recently reviewed by Curtis J. in Watson, at para 18, and set out as follows:
a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds in subrules 24(13)-(17);
b. If the onus is met, the court has discretion to grant or refuse an order for security;
c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order; and
d. The order must be "just" and be based on one or more of the factors listed in subrule 24(13), Izyuk v. Bilousov, at para. 40, C.L.B. , at para. 39.
65 Whether an order for security for costs is just in any particular case is an objective determination, based on the record before the court: Krzewina v. Beaumont, 2021 ONCJ 351., C.L.B, at para. 43, Watson, at para. 19.
66 The mere satisfaction of the criteria in r. 24(13) is not sufficient to merit an order for security for costs. It must also be just to make the order: Watson, at para. 20; Hodgins v. Buddhu, 2013 ONCJ 137, Borque v. Brokenshire, 2018 ONSC 2670.
67 In Wreggbo v. Vinton 2013 ONCJ 250, Katarynych J. 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 Quinn J. characterized the dilemma in the Stefureak case. See Stefureak v. Chambers, 2005 CanLII 7890 (ON SC). [emphasis omitted]
68 Further, the court in Wreggbo noted that whether an order for security for costs is "just" in any particular case is an objective determination, based on the record before the court, set in the context of the procedural law established by the Rules and the substantial law governing the claims for which the security is sought (para. 11).…
81 The FLRs afford the courts a wide discretion to determine the amount and form of security for costs, as well as the time for paying the ordered security into court or otherwise giving the required security: r. 24 (13-17) of the FLRs. The FLRs contemplate that the form of security to be provided is to be crafted on a case-specific basis, to meet the particular exigencies of the case. Neither the Rules of Civil Procedure or the FLRs requires that security for costs be in the form of a payment into court or the posting of a letter of credit, in all cases: Clark, at para. 46.
[21] The Applicant submits that the $10,000 sought as security for costs represents a modest fraction of the anticipated $50,000 or more that she will incur in responding to the Motion to Change and preparing for the two-day trial in January 2027.
[22] Applying the above principles, I find that:
(a) The Respondent habitually resides in Texas and thus satisfies the requirement in r. 24(20)(1). He remains in breach of the Costs Orders and thus also satisfies the requirement in r. 24(20)(2).
(b) I find that the requirement to post $10,000 in security for costs will not present a roadblock to the hearing of the Motion to Change. In 2024, the Respondent earned $138,031 USD and he recently purchased a second home in Texas. He states:
… my financial statement clearly shows that I am not judgement proof, as I own property and earn a relatively high income. Even if I am unsuccessful in this case at trial, the Applicant will be able to recover against me. There is no reason to force me to me nearly $30,000 up front prior to any determination of the substantive merits of my motion to change.
(c) The Respondent’s failure to pay to the Costs Orders during the period prior to the Agreement, and his residence in Texas (even with the availability of reciprocal enforcement laws) suggests that there is good reason to be concerned that, despite his relatively high income, there will not be a ready source of funds if the Respondent’s position regarding the Agreement is not accepted by the Court.
(d) The allegations raised by each party about the dishonesty of the other party have no bearing in this case on the outcome of this motion.
[23] The Respondent has not suggested any other form of security that might have less impact than the posting of cash.
[24] I find that it is just to order that the Respondent post security of $10,000.
Order
[25] Order to go as follows:
(1) The Respondent’s motion to change shall be stayed unless:
(a) By August 31, 2026, the Respondent pays the sum of $17,672.33 in respect of the Costs Orders to Mazinani & Associates which amount shall be held in trust until this Court otherwise directs.
(b) By September 18, 2026, the Respondent pays the sum of $10,000. to Mazinani & Associates which amount shall be held in trust as security for costs until this Court otherwise directs.
(2) By September 22, 2026, Mazinani & Associates shall advise the Applicant in writing of whether the Respondent has complied with paragraph 1.
(3) The parties shall upload their Bill of Costs by August 17, 2026, and shall attend by videoconference at 9:15 am on August 20, 2026, to make brief submissions regarding costs of this motion. No other written materials are required.
Mr. Justice M. D. Faieta
Date: August 14, 2026