Court Grants Security of Costs for Custody and Access Appeal

Written on behalf of Arbesman Hamilton LLP

A recent decision from the Ontario Superior Court of Justice took a look at how to handle the issue of security of costs during a custody dispute. Security of costs is the amount of money payable by a plaintiff and used to pay a defendant where that defendant is successful at trial and the court rules that the plaintiff is liable for costs.

What Happened?

The husband and wife in question met while the wife was vacationing in Bermuda in 1998. The husband, who resides in and is a citizen of Bermuda, was successful in winning unsupervised visitation with his children while he visited Ontario. The wife sought to appeal the judgment.

Meanwhile, the husband sought security for costs in the amount of $25,000. The Superior Court of Justice granted the husband’s request, which the wife then also appealed.

A Lengthy Trial and Ongoing Motions

The original 23-day trial, which dealt mainly with access issues, took more than 14 months to conclude, and was halted by motions 11 times to ensure an order granting the husband unsupervised access was complied with. The trial judge found the husband had rarely been able to gain access to the children without engaging in litigation. Each time the issue of access was before the court, the husband was granted access with the children. Between 2011 and 2015, the husband had a total of 12 visits with the children, two of which were supervised.

The Appeal

The rules for leave to appeal as outlined in Ontario’s Rules of Civil Procedure state:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

In her argument for appeal, the wife pointed to a line of caselaw stating the courts should take a cautious approach to granting security for costs when the issue is custody or access, and that such security should only be granted in exceptional circumstances. She argued the judge who granted security had failed to identify the exceptional circumstances. Furthermore, she argued the first part of the test is satisfied since the couple’s children would be impacted.

With respect to the second part of the test, the wife argued that the judge had made a series of errors of fact and law in the decision to grant security, bringing the correctness of the decision into question. She further argued that the judge who granted security “seriously misapprehended the evidence and submits ‘that the Supreme Court has held that “an appellate court must intervene when there is material error, a serious misapprehension of the evidence, or an error in law.’”

The Appeal Judge ultimately ruled in favour of the husband, finding that exceptional circumstances existed in this case. The security for costs were directly related to the high conflict between the parties and there had been no incorrectness in the original judge’s decision.

Decisions around the care of children can be some of the most important ones made during a separation and divorce. Custody and access can be emotional, and can also influence other aspects of separation and divorce, such as division of property and support. At Arbesman Hamilton LLP  our lawyers are experienced in helping parents understand their rights in order to make informed, rational decisions. Contact our offices online or by phone at 416-481-5604 if you are involved in a separation or divorce and would like to schedule a consultation.