Why he had to post money just to keep arguing his own case

The situation

'Why do I have to pay money just to keep arguing my own case.' That was Mykola's question, more or less word for word, when he called our office again after not calling for almost two years. He had just been served with a motion asking the court to order him to post security for costs before the case could go any further, a mechanism that lets a court require a party, usually one who has a track record of not paying costs orders or of behaving in a way that runs up the other side's legal bills, to put money aside in advance to cover what they might owe if they lose. Mykola had never heard of it. He also, as it turned out, had already been warned about the exact pattern of conduct that led to it.

Mykola and Iryna had been married for over two decades, both working steady jobs in Picton, Mykola as a transit operator and Iryna as a letter carrier. Their separation, which had started years earlier over a disagreement about how to divide the equity in their one modest home, had never fully resolved. Instead it had gone through several rounds: a first negotiation that fell apart, a motion Mykola brought on his own after that, a costs order against him when the motion failed, and then a second motion, also unsuccessful, that added another unpaid costs order to the first.

Mykola had come to our office once before, during that first round, and we had told him plainly that bringing repeat motions without new grounds was likely to result in costs awards against him, and that unpaid costs orders would eventually become a serious problem in themselves, not just an inconvenience. He had thanked us, gone quiet for a while, and then represented himself for the second motion anyway, using an approach a friend had suggested. It did not go well.

By the time Mykola came back to us, Iryna, now supported in part by her partner Jun, had a lawyer who had clearly reviewed the file's history closely. The motion for security for costs was not a surprise tactic. It was built directly on the record Mykola had made for himself over the previous two years, and household finances on both sides, modest to begin with, had already absorbed real damage from the unpaid orders and the legal fees behind them.

What the other side was relying on

Iryna's lawyer's motion was built almost entirely on Mykola's own history, and it was, we had to admit to him directly, a fair reading of that history. The motion pointed to two prior costs orders against Mykola, neither of which had been paid, and argued that this pattern showed a real risk that any future costs order, if Mykola kept litigating and kept losing, would go unpaid as well. Security for costs exists partly for exactly this situation: to protect a party from being dragged through further proceedings by someone whose track record suggests they will not honour the costs consequences if they lose again.

The motion also leaned on the fact that Mykola, on modest income as a transit operator, had limited assets beyond his share of the home, which made an unpaid costs order difficult to collect after the fact even with a judgment in hand. Iryna's side argued that requiring security up front, rather than hoping to collect later, was the only realistic way to protect her from bearing legal costs she could not afford to lose either. Iryna and Jun's household had also been paying steadily rising legal fees defending against Mykola's motions, and the request, framed generously, asked for a lump sum large enough to cover the costs of the remaining steps in the case all at once.

What the other side underestimated was how that lump sum would land on Mykola. A single upfront figure covering every remaining step, at once, would likely have exceeded what Mykola could raise without selling the very home equity the case was about, effectively ending his ability to participate in his own case regardless of the merits of his underlying position on property division. Security for costs is meant to protect against a real risk of an unpaid order, not to functionally shut a party out of court by demanding more than they can produce in one payment. That distinction became the center of how we responded.

Iryna's lawyer was also relying, reasonably, on the idea that Mykola would react to this motion the way he had reacted to advice before: by underestimating it, handling it himself, or missing the point until it was too late to respond effectively. That assumption did not hold this time.

What we did

1. Reviewed the full record honestly with Mykola. We went through both prior costs orders, the motions that produced them, and the advice we had given the first time, and told Mykola directly that the pattern the other side was pointing to was real and that minimizing it in front of a judge would not help him, however uncomfortable that conversation was to have.
2. Confirmed that some form of security order was likely. Given two unpaid costs orders and modest, hard-to-collect-against assets, we told Mykola that opposing the motion outright and hoping it would simply be dismissed was not a realistic strategy, and that our energy was better spent shaping the order than fighting its existence, since fighting a losing point would only add another costs exposure to the pile.
3. Proposed staging the security to match the remaining steps. Rather than accept a single lump sum covering every future stage of the case, we asked the court to order security in portions, each tied to the specific step it was meant to protect, so Mykola would only need to raise what the next stage actually required rather than the whole remaining case at once, keeping the demand proportionate to the actual risk at each point.
4. Set out a realistic payment source for each stage. We worked with Mykola to identify what he could actually raise before each step, largely through modest savings and a short-term arrangement with a family member, and presented that plan to the court as evidence the staged amounts were achievable rather than aspirational, which made the staged structure easier for the court to accept.
5. Addressed the unpaid prior costs orders directly. Instead of letting the two outstanding orders sit as unaddressed background facts, we proposed a modest monthly payment plan toward them, which gave the court a concrete reason to believe Mykola's non-payment reflected past financial strain rather than an intent to avoid his obligations going forward, and gave Iryna something tangible in the meantime.
6. Negotiated directly with Iryna's lawyer before the hearing. We put the staged proposal to the other side ahead of the motion date, and after some back and forth on the amount tied to the discovery stage specifically, reached an agreed order that avoided a contested hearing on the structure of the security itself, saving both sides the cost of arguing the motion in full.
7. Set clear consequences Mykola understood in advance. We made sure Mykola understood, in plain terms, that missing a staged payment would likely halt his case at that point, so there would be no repeat of the earlier pattern of ignoring a clear warning and being surprised later by the result. We wanted the consequence to be something he had genuinely absorbed in advance, not something he only learned about after a missed date had already cost him his ability to keep litigating.
8. Documented the whole arrangement in writing. We put the payment plan for the prior orders and the staged security schedule into a single written summary for Mykola, with the dates and amounts laid out plainly, so there would be no ambiguity for him to misread or set aside the way earlier advice had been. Given that Mykola had previously treated verbal advice as optional, a single page he could refer back to removed any room to later say he had misunderstood what was expected.

The outcome

The final order required Mykola to post security in three stages, each amount tied to the cost of the specific step ahead of it, rather than one lump sum covering the rest of the case. The total across all three stages came to a little under nine thousand dollars, roughly in line with what a single upfront order might have demanded, but spread out in a way Mykola could actually manage against his income as a transit operator, without having to touch his share of the home equity to raise it.

This was a compromise, not a win. Mykola still had to find real money, on a fixed schedule, to keep his own case alive, a direct consequence of a pattern he had been told about once before and chosen not to change. He also agreed to a monthly payment plan on the two outstanding costs orders, which reduced but did not eliminate a debt that would follow him for months regardless of how the property dispute itself resolved. Iryna, for her part, did not get the single large payment her motion had asked for, and had to accept a structure that gave her protection stage by stage rather than all at once, trusting that Mykola would actually meet each deadline as it came.

The case continued past the motion, with Mykola meeting the first staged payment on time. Whether he meets the next one is still ahead of him, and he now understands, in a way he did not two years ago, that the court's patience with unpaid orders and repeat motions is not unlimited. The compromise bought him the ability to keep making his case. It did not undo the cost, in money or in credibility, of having ignored the same warning once already, and it left him with a payment schedule and a monthly debt repayment sitting on top of an already modest income for as long as the case continues.

For Iryna and Jun, the staged structure meant living with less certainty than a lump sum would have given them, but it also meant the case kept moving rather than stalling on a contested motion that could have taken months to resolve on its own. Both sides, in the end, accepted a result neither had originally asked for, which is often what a workable compromise actually looks like.

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