The Applicant sought Security for Costs in two Appeals commenced by the Respondent, as the parties had been engaged in contentious family law proceedings for several years, including several Appeals filed in the Court of Appeal.

When applying Rules 14.67 and 4.22 to the matter, the Court began by considering the financial considerations engaged by the matter. The Court noted that the Respondent previously had a substantial income, earning over $200,000 in 2020, had some assets in Alberta, which included a home with equity of over $150,000, a substantial RRSP and a locked-in retirement account and various bank and investment accounts. However, the Respondent had not paid several Costs Awards of the Court of King’s Bench and one award from the Court of Appeal.

The Court concluded that the Respondent had the means to post security for reasonable Costs and being required to post security would not interfere with his ability to pursue his Appeals.  Further, without security, it would be unlikely that the Respondent would pay any Costs Award voluntarily, and it would be difficult if not impossible for the Applicant to enforce a Judgment for Costs.

There were also material challenges in the merits of the Respondent’s Appeals, which meant that a Costs Award against him was a reasonable prospect and that this was not a situation where an Order for Security for Costs risks dissuading an Appellant from pursuing a strong Appeal.

When determining the quantum of the Security for Costs, the Court stated that the purpose of Security for Costs is to ensure funds are available to satisfy an ultimate Costs Award in favour of the Applicant, and that the usual practice of this Court is to order Costs on the same basis as they were awarded at first instance. However, in this matter, there were no award of Costs in respect of the first instance decision, and the Judge awarded the Applicant tariff Costs on Column 1 in the Contempt decision.

The Court was not persuaded that the decisions of Pinder v HML Contracting Ltd, 2021 ABCA 207 and McAllister v Calgary (City), 2021 ABCA 25 assisted the Court. In Pinder, the Court ordered Security for Costs of $25,000 based on an estimate of solicitor and client Costs, because the parties were subject to a contract that provided for solicitor and client Costs. McAllister speaks to a calculation of reasonable and proper Costs as a partial indemnification of 40-50% of actual legal fees, but McAllister was not invoked in either of the decisions under Appeal. Therefore, and based on the materials before the Court, The Court awarded $4000 for each Appeal. This reflected items 18, 19 and 20 on Column 1 of the Schedule C plus an allowance for GST and disbursements.