COURT OF APPEAL FOR ONTARIO
CITATION: O.K. v. M.H., 2025 ONCA 352
DATE: 20250506
DOCKET: M55916 (COA-24-CV-0436)
Roberts J.A. (Motions Judge)
BETWEEN
O.K.
Applicant (Responding Party/Appellant)
and
M.H.
Respondent (Moving Party/Respondent)
M.H., acting in person[1]
Michael H. Tweyman, for the responding party
Ian Matthews, appearing as amicus curiae
Heard: April 23, 2025
ENDORSEMENT
[1] The moving party seeks to adjourn the responding party’s appeal, scheduled for May 28, 2025, and to stay it until he pays three months of support arrears for January to March 2025 (“the support arrears”), and security for costs of the appeal. She submits that if the responding party fails to make these payments by a certain date, his appeal should be administratively dismissed. The responding party opposes the motion.
[2] The responding party appeals the March 18, 2024 judgment determining child support, spousal support, the equalization payment owing to the moving party, and the disposition of the parties’ home. The trial judge imputed income to the responding party, ordered ongoing child and spousal support and vested the responding party’s equity in the home as security for his past and ongoing support obligations.
(a) Support arrears
[3] I start with the request for payment of the support arrears. The responding party did not seek a stay of his child and spousal support obligations. He submits nothing is due because he effectively pre-paid them. He argues the payments that he made in 2024 should be credited towards the support payments due from January to March 2025 because the trial judge extinguished any arrears up to December 2024 when she vested his interest in the home in the moving party. Accordingly, the support payments made in 2024 were an overpayment of the support that the trial judge had extinguished.
[4] I do not accept the responding party’s submissions. The appeal is from the trial judge’s orders and not her reasons. It is the orders and not the reasons that govern. The orders dated March 18 and September 27, 2024 are clear and provide for the ongoing payment of child and spousal support starting January 1, 2025. The orders also stipulate that the arrears up to December 31, 2024 are extinguished by the vesting of the responding party’s interest in the home in the moving party. The orders do not say that the ongoing support obligations are deemed to be paid nor do they suspend the responding party’s ongoing support obligations for the balance of 2024 or for 2025 and onwards. As a result, the responding party was required to pay support for the months of January, February and March 2025. I note that he paid support for April 2025.
[5] It is beyond well-established that support payments are not automatically stayed by an appeal: see r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194. If the responding party wished to stay his obligations, he was required to bring a motion. If the responding party was confused about the trial judge’s decision or his ongoing obligations, or if he was of the view that the order did not reflect the trial judge’s decision, he was required to return before the trial judge to seek clarification. He did none of these things, and instead unilaterally decided that he did not have to pay three months of support in 2025.
[6] The responding party’s actions reflect a continuing pattern of failure to honour his court-ordered support obligations. As the trial judge noted, the responding party has adopted a “catch me if you can” approach to the litigation.
[7] In the face of non-payment of support, an appellate court may exercise its discretion and adjourn, stay or dismiss the appeal: A.A. v. Z.G., 2016 ONCA 660, at paras. 2-5. Accordingly, I exercise my discretion to adjourn the appeal. The appeal shall be stayed until the responding party pays to the moving party the support arrears in the amount of $24,396 (as well as the other amounts listed below). He shall pay these arrears no later than June 6, 2025, and provide proof of payment to this court’s Registrar, failing which his appeal shall be administratively dismissed without further notice. If he is successful on appeal, adjustments may be ordered accordingly.
(b) Security for the moving party’s appeal costs
[8] I turn next to the request for security for costs. Rule 61.06(1) of the Rules of Civil Procedure sets out the criteria for making such an order on an appeal:
R. 61.06(1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
(b) an order for security for costs could be made against the appellant under rule 56.01; or
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
[9] The determination of whether security for costs should be ordered is a two-step process. First, the court must assess whether the statutory criteria under r. 61.06(1) have been met. Second, the order is discretionary and will not be made unless the court is persuaded that it is just: Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, 156 O.R. (3d) 551, at para. 31; Yaiguaje v. Chevron Corporation, 138 O.R. (3d) 1, 2017 ONCA 827, at paras. 18, 25.
[10] The moving party relies on all three prongs of r. 61.06(1), including under r. 56.01(1)(a) that the appellant is ordinarily resident outside Ontario.
[11] I am not persuaded that security for costs should be awarded under r. 61.06(1)(a). The criteria are conjunctive: the moving party must show that there is good reason to believe that the appeal is both frivolous and vexatious and that the responding party has insufficient assets in Ontario: York University v. Markicevic, 2017 ONCA 651, O.J. No 4147 (QL), at para. 33. Generally, a frivolous appeal is one devoid of merit and with little prospect of success; a vexatious appeal is one that is brought to annoy or harass, is conducted in a vexatious or “less than diligent” manner or is pursued in bad faith or for an oblique purpose: Lavallee v. Isak, 2022 ONCA 290, at paras. 19, 25. While the responding party no longer has any assets in Ontario, I cannot say that he has brought the appeal to harass the moving party. He has a right to appeal and his appeal raises arguable, albeit weak, grounds.
[12] However, the motion succeeds under r. 61.06(1)(b) and (c).
[13] With respect to r. 61.06(1)(b), there is no dispute that the responding party no longer lives in Ontario. He left Ontario in May 2021 and never returned. He travelled for six months and then settled in New Zealand. He is registered as a medical practitioner and listed as a doctor in a medical clinic in Quatar. The moving party having established that the responding party is no longer resident in Ontario, the onus shifts to the responding party to demonstrate that he has assets available to satisfy the moving party’s costs if the appeal is unsuccessful or that his appeal has merit and posting security for costs would prevent him from continuing with it: Yaiguaje, at para. 25; Unique Labeling Inc. v. GCAN Insurance Company, 2009 ONCA 591, 98 O.R. (3d) 233, at paras. 16, 20.
[14] The responding party has not satisfied his onus. It is common ground that he has no assets in Ontario. He says that he has about $116,000 in a bank account in New Zealand. There was no evidence as to whether his bank account would be exempt under any reciprocal enforcement legislation. Moreover, there is unchallenged evidence before the court that he is registered as working in Qatar, a country not subject to reciprocal enforcement legislation.
[15] Given his historical and ongoing failure to honour his support obligations and the possibility that he may have relocated to Qatar, I have no confidence that the monies in his New Zealand bank account will remain available to satisfy a costs order nor that he will voluntarily satisfy a costs order if he loses his appeal. I also am of the view that as the moving party is a person of limited means, exacerbated by the responding party’s failure to pay support, it would be unfair to require her to bring proceedings to recover payment of a costs order if the responding party’s appeal is unsuccessful. That is not the case with the responding party: he has substantial funds in a bank account and is gainfully employed as a physician earning a six-figure salary; there is no suggestion that he cannot afford to proceed with his appeal if security for costs is ordered. As I earlier noted, the responding party’s appeal is weak – he essentially challenges the trial judge’s careful findings of fact and credibility that were open to her on the record.
[16] Further, I conclude that the moving party is entitled to security for costs under r. 61.06(1)(c). As Zarnett J.A. noted in Thrive Capital Management Inc., at para. 19: “The list of what might qualify as an "other good reason" is not closed. But the reason must be (i) compelling, and (ii) related to the purpose of ordering security, which is to provide a respondent with a measure of protection for costs (citations omitted)”. What may qualify as an “other good reason” includes those circumstances to which I have already alluded: the responding party’s historical and ongoing failure to pay his support obligations, the weakness of his appeal, and the unlikelihood that the moving party would be able to collect costs if the appeal is unsuccessful: Perron v. Perron, 2011 ONCA 776, 345 D.L.R. (4th) 513, at paras. 21, 22; Henderson v. Wright, 2016 ONCA 89, O.J. No 533 (QL), at para. 27; Heidari v. Naghshbandi, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 24; Rathod v. Chijindu, 2024 ONCA 317, at paras. 10-11.
[17] As for the amount of the security to be ordered, the moving party has suggested a range of $35,000 to $50,000. This is based on the estimate provided by the family law lawyer who assisted the moving party to prepare her motion materials and who will likely be retained to respond to the appeal. I conclude that the amount of $35,000 is a fair estimate for the moving party’s appeal costs.
[18] The responding party shall pay the amount of $35,000 into court as security for the moving party’s costs of the appeal. His appeal is adjourned and stayed until payment is made and notice of payment is provided to the moving party/her counsel and this court’s Registrar. If payment is not made by June 6, 2025, the appeal shall be administratively dismissed without further notice.
Disposition
[19] For these reasons, I adjourn the responding party’s appeal. I order that the responding party shall pay by June 6, 2025: 1) to the moving party, the support arrears in the amount of $24,396; and 2) into court, the amount of $35,000 as security for the moving party’s costs of the appeal. His appeal is stayed until those payments are made and notice of payment is provided to the moving party/her counsel and this court’s Registrar. If either of these payments is not made by June 6, 2025, the appeal shall be administratively dismissed without further notice. If and when both payments are made, the responding party may seek a new appeal date from the court office. The moving party shall have 30 days from the date payment of both these amounts is made to serve and file her responding materials to the appeal.
[20] The moving party is entitled to her costs of this motion. She retained counsel to assist her on her motion for security for costs. The responding party shall pay the moving party by June 6, 2025 the amount of $3,200 for costs. His appeal is stayed until payment of the costs is satisfied.
“L.B. Roberts J.A.”
[1] As did Lauwers J.A., who is case managing this appeal, I allowed the moving party’s adult daughter to assist her to make submissions.