By Maria Golarz, Senior Associate Research Lawyer, Lam Family Law*
 

Legislation

Pursuant to R. 24(20) of the Family Law Rules, O Reg 114/99, 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 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, a nuisance or an abuse of the court process, and that the party does not have enough assets in Ontario to pay costs.
  5. A statute entitles the party to security for costs.

Other relevant subrules include: Rr. 24(21) (Amount and form of security), 24(22) (Effect of order for security), 24(23) (Failure to give security), and 24(24) (Security may be changed).

Note: Rule 24 on costs was revoked and replaced effective January 2025 by O. Reg. 10/25. Some of the numbering from the old subrules were changed. However, the only significant change to the subrules on security for costs was to current subparagraph 4. of R. 24(20). The old subparagraph 4. of the previous R 24(13), read as follows:

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. [underlining added where old subparagraph 4. in R. 20(13) differs from current subparagraph 4. in R. 24(20)]

In addition, Rr. 24(21)-(24) were previously Rr. 24(14)-(17). However, there were only minor wording changes to Rr. 24(22) and 24(23) [from “a judge” to “the judge”].

We reviewed other changes to Rules 18 (Offers to Settle) and 24 (Costs) of the Family Law Rules in Lam Family Law’s March 2025 newsletter.

Purposes and General Principles

There are two purposes of an order for security for costs:

  • (a) 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
  • (b) to ensure the existence of a ready source of funds to which a successful litigant may look to satisfy costs of a proceeding that they have been compelled to incur: Shokoufimoghiman v. Bozorgi, 2023 ONSC 6124 (CanLII), at paras 61-62, citing various cases.

However, security for costs orders are not to be made routinely. Such orders are a “blunt instrument” and the court must ensure that such an order is not used as a litigation tactic to prevent a case from being heard on its merits: Shokoufimoghiman v. Bozorgi, ibid, at para 63, citing various cases.

In deciding whether to award security for costs, the court must apply the following analysis:

  • (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;
  • (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 what is now R. 24(20) (previously R. 24(13)): Unoh v. Agboola, 2023 ONSC 5751 (CanLII) (Div Ct), at para 36, citing Pazaratz J. in Izyuk v Bilousov, 2015 ONSC 3684 (CanLII), at para 40, which in turn cites various cases. See also Shokoufimoghiman v. Bozorgi, ibid, at para 64, citing Watson v. Watson, 2023 ONCJ 435 (CanLII), at para 17.

Even where a party has satisfied one of the R. 24(2) criteria (e.g., party is outside of Ontario), an order for security for costs is not intended to prevent the merits of a case from being heard. All the circumstances of the case must be considered, as well as the justness of the order “holistically”: Unoh v. Agboola, ibid, at paras 69 & 71, citing Bragg v. Bruyere, 2007 ONCJ 515 (CanLII). See also Shokoufimoghiman v. Bozorgi, ibid, at paras 66-68, citing various cases.

For parenting cases, the case law often suggests security for costs should only be ordered in “exceptional circumstances”, given the following rationale:

  • (a) The best interests of children are always paramount.
  • (b) Courts should not allow the outcome in children’s lives to be determined by a party’s financial resources, or inability to post security for costs.
  • (c) Despite any deficiency or non-compliance by a parent, courts are better able to address sensitive children’s issues if both parties participate in the process and provide valuable information.
  • (d) These concerns may be particularly applicable where parenting issues are being determined in the first instance (as opposed to a motion to change): Unoh v. Agboola, ibid, at para 37, citing Izyuk v Bilousov, 2015 ONSC 3684 (CanLII), at para 41, which in turn cites various cases.

On the other hand, high conflict parenting disputes are often “the most time consuming, financially draining, and emotionally damaging cases we deal with in family court. Quite often the best gift we can give children is a break from the family siege mentality and perpetual stoking of conflict which accompanies endless litigation.”: Unoh v. Agboola, ibid, at para 37, citing Izyuk v Bilousov, ibid, at para 42

Recent Case Law Examples

  • Security for costs ordered: Unoh v. Agboola, 2023 ONSC 5751 (CanLII) (Div Ct), at paras 57-76, Standryk J. [father brought contempt motion as well as appeal; father resided outside Ontario and had no assets in Ontario; costs Order remained outstanding although stayed by father’s appeal; not clear that father’s motion to change was nuisance or waste of time; however, great deal of animosity between parties and counsel, which continued expensive litigation; father had also been ordered to post $15,000 as security for costs in his appeal; Standryk J. found that $7,500 was reasonable for security for costs for contempt motion; further, in the event the father was unsuccessful in his appeal, and should the father wish to proceed with his motion to change, before taking any further steps to advance that motion, he shall post $20,000 as security for costs].
  • Security for costs ordered: Porter v. Kik, 2023 ONSC 6636 (CanLII), at paras 16-19, 30, & 32-33, Breithaupt Smith J. [security for costs appropriate where mother demonstrated lack of participation and provided no response to father’s motion; the litigation qualified as a “nuisance”; security for costs would force her to participate and provide father with “some assurance” of recovery of anticipated legal fees should mother’s claims be unsuccessful].
  • No security for costs: Covell v. Covell, 2024 ONSC 4622 (CanLII), at paras 12-20, Engelking J. [applicant had lived outside Ontario since 2011 and had outstanding “costs” Order; however, previous Order did not differentiate support arrears from costs, so unclear whether costs actually unpaid and some support/costs had been paid, albeit slowly; not clear whether application was waste of time or nuisance; existing orders being enforced by Family Responsibility Office and Maintenance Enforcement Program].
  • No security for costs / alternative remedy: Shokoufimoghiman v. Bozorgi, 2023 ONSC 6124 (CanLII), at paras 43 & 61-82, Kraft J. [impact of security for costs order on applicant wife would be ”profound”; not clear her trust claims against respondent husband and his brother were waste and nuisance, nor could court conclude she did not have sufficient assets in Ontario to pay costs; however, naming husband’s brother as a respondent without setting out elements of trust claim did not allow for dealing with case justly; thus, although test for security for costs not met, court ordered applicant wife to preserve $25,000 from her condo proceeds of sale as security for the husband’s brother’s claims].

Security for Costs of an Appeal

The court may also order security for costs of an appeal. The legislative provisions for security for costs of an appeal are as follows:

  • For an appeal to the Divisional Court or the Court of Appeal: R. 61.06 (Security for Costs of Appeal), which refers to R. 56.01 (Security for Costs – Where Available), of the Rules of Civil Procedure, RRO 1990, Reg. 194.
  • For an appeal to the Superior Court of Justice: R. 38(26) (Security for Costs of Appeal) of the Family Law Rules, O Reg 114/99. See also R. 38(27) [“Dismissal for failure to obey order”].

In a recent case decided under new R. 24(20) of the Family Law Rules, Regional Senior Justice Boucher declared the appellant a vexatious litigant and ordered security for costs of $10,000 to be paid into court for the appeal. The security for costs order was appropriate where the appellant currently owed $15,560 pursuant to two costs orders, even though most of those costs were under appeal. There was good reason to believe any future costs awards associated with the appeal would not be paid (the appellant’s own evidence indicated that she had no intention of paying costs, regardless of ability to pay). There was good reason to believe that the appeal was waste of time and a nuisance. The appellant sought in her appeal relief that the judge below (in the Court of Justice) had noted was not available in law. The amount sought by the respondent was fair and reasonable having regard to the history of the proceeding and was a realistic estimate of what he would incur in responding to the appeal: Peters v. Rahbar, 2025 ONSC 873 (CanLII), at paras 1, 7, & 24-28.

Related Considerations

  • Security for costs before leave: The court may require a party to pay security for costs, to be paid before the court will grant them leave to bring a further motion: see, e.g., Watson v. Watson, 2023 ONCJ 435 (CanLII), at paras 15-32, Curtis J.
  • Interim costs and disbursements: If a party’s ability to finance family litigation generally is an issue, counsel should consider bringing a motion for the other party to cover part or all of the expenses of carrying on a case, including lawyer fees under R. 24(25) of the Family Law Rules, O. Reg. 114/99 (Payment to carry on case) (sometimes referred to as interim costs and disbursements).
  • Security for support order: The court can order the provision of security for a child and/or spousal support order pursuant to s 34(1)(k)of the Family Law Act, RSO 1990, c F.3 (Powers of Court), or the Divorce Act, RSC 1985, c 3 (2nd Supp), ss 15.1(4) (Child Support Orders – Terms and conditions) and 15.2(3) (Spousal Support Orders – Terms and conditions).

*with thanks to Vanessa Lam for her suggestions and edits.
 

This blog is informational only and should not be relied on as legal advice.