4.22: Considerations for security for costs order
14.67: Security for costs

Case Summary

The Applicant, Marla Lotoski sought an Order requiring the Respondent, Robert Lotoski to pay Security for Costs prior to the Respondent’s Appeal regarding a child support matter. The Respondent had been required by Court Order in 2013 to pay child support arrears to the Applicant in the amount of $126,195.68. The Respondent applied in 2017 to vary the 2013 Order, to have arrears determined, and to stay the sale of the Respondent’s property pending that determination. That Application was dismissed and the Respondent appealed.

Strekaf J.A. confirmed that Rule 14.67(1) allows an appellate Judge to order payment of Security for Costs in accordance with Part 4, Division 4 of the Rules of Court. Strekaf J.A. considered Rule 4.22 which states that the Court may order a party to provide Security for Costs where it is just and reasonable, and after considering all of the following factors:

1.   The likelihood that the Applicant will be able to enforce an Order or Judgment against assets in Alberta;

2.   The Respondent’s ability to pay a Costs award;

3.   The merits of the Action in which the Application is filed;

4.   Whether the Respondent would be unduly prejudiced by a Security for Costs Order; and

5.   Any other matter the Court considers appropriate.

Justice Strekaf concluded that these factors favoured granting Security for Costs to the Applicant as it was unlikely that the Applicant would successfully recover a Costs award given the Respondent’s history of non-payment in the past. Moreover, Justice Strekaf found that the Appeal appeared to lack merit. Finally, an Order for Security for Costs would not unduly prejudice the Respondent’s ability to pursue his Appeal. The Respondent was shown to have a significant equity stake in a farm that could be used to post the security.

Strekaf J.A. granted the Application and required that $20,000.00 be posted as security within two months, failing which the Appeal would be deemed abandoned without further Order.

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