BARRIE COURT FILE NO.: FC-10-937-00

DATE: 20120130

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROLF MEESER, Applicant

AND:

PEGGY ADALIA MEESER and JOSEF and KATHARINA MEESER, Respondents

BEFORE: J.P.L. MCDERMOT, J.

COUNSEL:
Thomas W.G. Pratt, Counsel, for the Applicant and the Respondents, Josef and Katharina Meeser

Respondent, Peggy Adalia Meeser unrepresented

HEARD: By written submissions

ENDORSEMENT

[ 1 ] On October 20, 2011, I heard argument on a motion brought by the respondent, Peggy Adalia Meeser, for a number of claims for temporary relief. The applicant, Rolf Meeser, as well as his parents and co-respondents, Josef and Katharina Meeser, also brought a counter-motion for questioning and an affidavit of documents; that motion was resolved during argument by way of consent. Ms. Meeser achieved partial success on the various motions brought by her that day.

[ 2 ] I gave leave to the parties to provide submissions as to costs and those submissions have now been received. Mr. Pratt states that his client is entitled to partial indemnity costs of the motions. He states that his client was largely successful in the result of the motions. He notes that Ms. Meeser was unsuccessful in her bid to have spousal support increased, for a share of the rental income for the New Lowell property, to extend the restraining order or for recovery of a share of the utility costs respecting the matrimonial home. He states that his client was successful in obtaining an order for questioning and for a affidavit of documents. He submits that his clients are entitled to costs on a partial indemnity basis in the amount of between $5,000 to $6,000.

[ 3 ] Ms. Meeser does not seek costs but denies any liability for costs of this motion. She has filed submissions stating that the major issue for her was to secure a valuation of J&R Firewood; she states that she was successful on that count. She notes that she was successful as well in obtaining most of her claimed s. 7 expenses as well as for certain repairs to the matrimonial home and structure as to the use of the shared outbuilding, the latter of which was also obtained on consent during argument. She states that the applicant and his parents have delayed proceedings and she had no choice but to bring a motion in this matter.

[ 4 ] Under Rule 24(1) of the Family Law Rules , [^1] costs follow the event, and a successful party is presumed to be entitled to costs. I may take into account unreasonable conduct of either party (Rule 24(4)) and if success is divided, I may apportion costs as appropriate (Rule 24(6)). Under Rule 24(11), I may take into account the “importance, complexity or difficulty of the issues” as well as “the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order”.

[ 5 ] I can also take into account the conduct of the parties to this proceeding: see Rule 24(8) of the Family Law Rules. Under that rule, I may order full indemnity costs payable forthwith if a party has acted in “bad faith.” Moreover, I may generally take into account under Rule 24(11) “the reasonableness or unreasonableness of a client’s behaviour” in assessing costs.

[ 6 ] Neither party to this proceeding made any offers to settle the motion. Ms. Meeser states that she attempted to negotiate a settlement but was unsuccessful. Be that as it may, the parties largely negotiated and settled several issues raised in the motion and counter-motion during argument before the court. None of the parties demonstrated any particular alacrity in settling issues raised in the motion or otherwise. Both of the issues settled on consent, being the shared use of the barn and the request for questioning and an affidavit of documents made by the applicant and his parents, should have been easily settled prior to the hearing of the motion and were not.

[ 7 ] The applicant is also correct when she notes that she was partially successful in the relief requested by her in her motion. She was successful in obtaining reimbursement of certain s. 7 expenses as well as the business valuation. Both of these claims were effectively for the purpose of enforcing or clarifying earlier orders made by this court, and the result was favourable for Ms. Meeser. She should not have had to bring her motion and were costs awarded against her, it would largely cancel out any benefit to her resulting from the ordering of the s. 7 expenses paid by her for her children.

[ 8 ] However, on certain other major issues, Ms. Meeser was unsuccessful in the result, and this was where, as I noted, she was dissatisfied with earlier orders of the court. In particular, her attempts to vary the spousal support and the restraining order were particularly ill-founded. I expressed my disapproval of her attempt to litigate the ongoing issues by way of motion when the matter should really be moved along toward trial as quickly as possible. Had Ms. Meeser requested costs, I would have considered not allowing costs based upon unreasonable behaviour within the meaning of Rule 24(11).

[ 9 ] Ms. Meeser, however, is not seeking costs and I do not have to decide her entitlement to costs. It is apparent to me that the success of the parties to this motion was largely divided. As such, there shall be no order as to the costs of the motion or counter-motion.

McDERMOT J.

Date: January 30, 2012

[^1]: O. Reg 144/99