Court of Appeal Makes Rare Order for Security for Costs in Custody Dispute After Mother Presents Fraudulent Evidence at Trial

Mark Feigenbaum

In a recent Ontario Court of Appeal decision, the court ordered a mother to pay security for costs for her appeal of a custody decision, which the court held to be frivolous and vexatious.

Parents Go to Court Over Custody

The father, an American citizen, met the mother, an Indian citizen with permanent residence status in Canada, in the United States. They married in 2017. A month after their marriage, she returned to Canada. The following month, they learned that the mother was pregnant. The father moved temporarily to Ontario to be with her. Problems in the marriage arose and they separated in December 2017. 

In early February 2018, the mother sent the father a series of text messages indicating that the baby had been born prematurely and was in the neo-natal intensive care unit, breathing on a ventilator. However, the mother’s statements were false. 

The child was born on March 30, 2018. The custody trial began on November 17, 2020. 

Mother’s Conduct Reprimanded by Trial Judge

The custody trial lasted for four weeks.  

Among other issues, the trial judge described one challenging aspect of the trial, summarized by the Court of Appeal as follows: 

“On the fifth day of trial, [the mother], alleging that [the father] was not the biological father, filed the results of a paternity test. She then said he was just a sperm donor and filed a “Sperm Donor Agreement” which showed he did not want to be involved with the child. She also filed an email exchange between the father and his counsel which alleged the planning of a criminal act to remove the mother from the litigation. It became evident rather quickly that these documents were – in the words of the trial judge – “transparent and shocking forgeries created by the mother.” This was not the only forgery presented by [the mother]. She also presented an 18-page affidavit from someone who – upon being called as a witness by [the father] – said she did not know [the mother] and had never signed the affidavit.

The mother’s two counsel – her tenth and eleventh – withdrew from the record upon realizing their unwitting participation in placing fraudulent evidence before the court.”

At the end of the first week of the trial, the mother left Canada for India. She did not inform the court, the father or the child of her departure. The mother did not return to Canada, instead having her counsel request her participation by Zoom from India. The court granted her request. 

Even though the court asked the mother to provide her travel details, she never did and she never returned to Canada.

Due to the urgency of the situation, the trial judge gave oral reasons at the end of the trial, finding that it was in the best interests of the child to transfer her residence to the United States to live with her father. 

In her subsequent written reasons, the trial judge noted that because of the allegations against him by the mother, the father had been extensively investigated by the Toronto and Peel Children’s Aid Society. He had been further vetted by a Children’s Lawyer. The trial judge noted the Office of the Children’s Lawyer’s final report detailed 18 substantive allegations that had been made by the mother against the father, all of which were determined to be false. 

Finally, the trial judge stated in her reasons:

“I say this gravely: but for cases of infanticide or abduction, [the mother]’s actions in and outside of this litigation exceed any known to me in the caselaw.”

The mother filed an appeal.

The father then brought a motion for security for costs of the mother’s appeal. 

Security for costs may be ordered pursuant to r. 61.06(1) of the Rules of Civil Procedure, when 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 r. 56.01; or

(c)      For other good reason, security for costs should be ordered. 

Court of Appeal Orders Mother to Pay Security for Costs

The court began by noting:

“It is rarely appropriate to award security for costs in a child-related matter. This is a rare case.”

The court first opined that the mother’s appeal appeared to be frivolous and vexatious, stating: 

“The appeal is readily recognizable as lacking merit and therefore frivolous. The trial judge made credibility and factual findings that were strongly supported by the evidence and the mother’s conduct throughout the proceedings, which I have summarized above. In particular, the trial judge carefully considered the child’s best interests and found that they were best served by being with the father in Oregon. Because of the mother’s conduct towards the father and his family, there was no basis to award joint custody.”

Additionally, the court stated that the mother had not raised any errors of law and, based on her conduct, the appeal appeared to be vexatious.

Further, the court held that, based on her financial statements, the mother had no assets available to pay the costs of the appeal.

Finally, the court found that the mother’s deceitful and fraudulent conduct and the wellbeing of the child provided further grounds for ordering security for costs. 

As a result, the court  granted the father’s motion for security for costs and the mother was required to deposit $30,000 to the credit of the appeal.

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At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.