Security for Costs in Family Law Proceedings

Under Rule 24(13) of the Family Law Rules, the courts can make orders for security for costs in certain circumstances.  Simply speaking, a party can be ordered to pay money into court pending the outcome of a case to ensure that funds will be available to cover a costs award.  The purpose of seeking an order for security for costs is to stop a party from carrying out frivolous litigation.  The court recognizes that court proceedings are sometimes prohibitively expensive, time-consuming, and should not be carried out with wanton disregard to the responding party.

Seeking Security for Costs

A party who is seeking security for costs from another party must bring a motion.  If that party is successful, the court is required to make an order for security that is fair.

An order for security for costs may be awarded if one of the following factors are present in a case:^[1]

1. A party habitually resides outside Ontario;
2. A party has an order against the other party for costs that remains unpaid, in the same case 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; and/or
5. The statute entitles the party to security for costs.

Consequences of Security Motion 

It is important to note that if a party is successful in a motion for security for costs, there will be significant consequences against the responding party.  That party would be prohibited from taking any further action in the proceedings (except appealing the order) without the leave of the court, or until the party posts the security as ordered.  If the party refuses to comply with the order, he/she will risk having their pleadings struck or having their case dismissed.^[2]  Given the consequences, litigants are highly advised to prepare well and take motions for security for costs seriously.