"Litigants should not be permitted to use the court as a playground." These are the words of the Honourable Justice Pazaratz of the Ontario Superior Court of Justice in Izyuk v. Bilousov 2015 ONSC 3684 where he dealt with the issue of security for costs in the context of custody and access applications.
The 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 that will be incurred as a result of advancing a position with no merit. In Alberta, under the Rules of Court, particularly Rule 4.22, a party can apply for an order for security for costs. What that means is that the party advancing a claim with no merit is forced to pay a certain amount of money into court prior to being able to make the application or advance the claim. The rules related to costs awards are designed to foster three purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.
In Izyuk the Court dealt with an acrimonious high conflict divorce and custody battle that started in 2011 with a 17 day trial. In that trial the father was 100% successful and obtained sole custody of the child. Justice Pazaratz found the wife to be a liar, in fact, in the decision he opined that she lied repeatedly on the witness stand, in affidavits and to the social worker involved on the file. A costs award of $11,500.00 was made against the mother in favour of the father. In 2012 the father brought an emergency application after it became clear that the mother was trying to abduct the child to the Ukraine. The Court ordered that until the trial, the mother's access would be supervised. In 2014 the abduction trial was held and it was found that the mother was in fact trying to abduct the child to Ukraine and ordered that she attend counselling and therapy as she was a risk to harm the child. Lastly, the Court went on to find that the mother "could not be trusted." The Court made a costs award of $20,000.00 against the mother in favour of the father. Months after the ruling, the mother came back to court trying to get access and advising that she had completed the extensive counselling and therapy that had been ordered. In March 2015 the mother brought an application for joint custody. The father, after receiving the mother's application made a cross-application for security for costs.
In reviewing the law, the Court opined that security for costs should only be granted in exceptional circumstances when dealing with custody and access matters. The rationale behind that is sound. The outcome of a child's life should not be determined by the financial resources of the parties. Secondly, both parents ought to be involved when the Court addresses sensitive issues related to the children. At the same time that has to be weighed against a situation where a party has launched frivolous litigation with no regard for the impact on the responding party. All to often in custody battles the effect on the opposing side is never considered. In Stefureak v. Chambers Justice Quinn held that where it can be shown that the position being advanced by a party is a "waste of time or a nuisance" it should not matter if custody is at issue.
In Izyuk the Court found that the mother had shown a consistent pattern of deception and reckless litigation. Justice Pazaratz held that a security for costs award was reasonable and "perhaps long overdue." The Court went on to quote the recent Supreme Court of Canada decision in Hyrniak v. Mauldin 2014 SCC 7 which discusses our broken legal system in Canada. As Justice Pazaratz put it: a cultural change is required in our court system. As the Supreme Court of Canada opined, the judicial system in Canada has five realities that have to be faced head on:
1. Judicial resources are not limitless;
2. Protracted & expensive litigation is in no one's best interests. Particularly if a just result can be attained quickly;
3. Perpetual litigation to "protect a child" has the opposite effect;
4. Our ability to control the process will vanish if we fail to apply cost sanctions in a meaningful way; and
5. In family law we have created a time consuming, complex and expensive system. The system promotes mischief and abuse of that system if some litigants never have to worry about legal fees or cost consequences.
The 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 that will be incurred as a result of advancing a position with no merit. In Alberta, under the Rules of Court, particularly Rule 4.22, a party can apply for an order for security for costs. What that means is that the party advancing a claim with no merit is forced to pay a certain amount of money into court prior to being able to make the application or advance the claim. The rules related to costs awards are designed to foster three purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.
In Izyuk the Court dealt with an acrimonious high conflict divorce and custody battle that started in 2011 with a 17 day trial. In that trial the father was 100% successful and obtained sole custody of the child. Justice Pazaratz found the wife to be a liar, in fact, in the decision he opined that she lied repeatedly on the witness stand, in affidavits and to the social worker involved on the file. A costs award of $11,500.00 was made against the mother in favour of the father. In 2012 the father brought an emergency application after it became clear that the mother was trying to abduct the child to the Ukraine. The Court ordered that until the trial, the mother's access would be supervised. In 2014 the abduction trial was held and it was found that the mother was in fact trying to abduct the child to Ukraine and ordered that she attend counselling and therapy as she was a risk to harm the child. Lastly, the Court went on to find that the mother "could not be trusted." The Court made a costs award of $20,000.00 against the mother in favour of the father. Months after the ruling, the mother came back to court trying to get access and advising that she had completed the extensive counselling and therapy that had been ordered. In March 2015 the mother brought an application for joint custody. The father, after receiving the mother's application made a cross-application for security for costs.
In reviewing the law, the Court opined that security for costs should only be granted in exceptional circumstances when dealing with custody and access matters. The rationale behind that is sound. The outcome of a child's life should not be determined by the financial resources of the parties. Secondly, both parents ought to be involved when the Court addresses sensitive issues related to the children. At the same time that has to be weighed against a situation where a party has launched frivolous litigation with no regard for the impact on the responding party. All to often in custody battles the effect on the opposing side is never considered. In Stefureak v. Chambers Justice Quinn held that where it can be shown that the position being advanced by a party is a "waste of time or a nuisance" it should not matter if custody is at issue.
In Izyuk the Court found that the mother had shown a consistent pattern of deception and reckless litigation. Justice Pazaratz held that a security for costs award was reasonable and "perhaps long overdue." The Court went on to quote the recent Supreme Court of Canada decision in Hyrniak v. Mauldin 2014 SCC 7 which discusses our broken legal system in Canada. As Justice Pazaratz put it: a cultural change is required in our court system. As the Supreme Court of Canada opined, the judicial system in Canada has five realities that have to be faced head on:
1. Judicial resources are not limitless;
2. Protracted & expensive litigation is in no one's best interests. Particularly if a just result can be attained quickly;
3. Perpetual litigation to "protect a child" has the opposite effect;
4. Our ability to control the process will vanish if we fail to apply cost sanctions in a meaningful way; and
5. In family law we have created a time consuming, complex and expensive system. The system promotes mischief and abuse of that system if some litigants never have to worry about legal fees or cost consequences.