Court File and Parties

COURT FILE NO.: 45992-11

DATE: 2013-01-18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Katherine Meidell, Applicant and Christopher Meidell, Respondent

BEFORE: The Honourable Mr. Justice G.A. Campbell

COUNSEL: D. Piccoli, for the Applicant C. Meidell, Self-represented Respondent

HEARD: Written Submissions

ENDORSEMENT ON COSTS

[1] I have received written submissions and have read and considered them.

[2] Although the attendance on January 8, 2013 was a settlement conference and not a motion, Rule 24 (10) requires me to set costs “promptly after each step of a case” (my emphasis).

[3] While I commend Mr. Meidell for seeking more legal advice, and asks me to delay deciding costs while he does so, in his letter he was careful not to suggest that he intends to retain counsel to guide him in this and the other remaining issues that continue before the court.

[4] The lawyer that he intended to consult will be the third (or fourth?) such legal professional that he has apparently met for advice.

[5] Given the specific wording of the Rule (“promptly”) I am unwilling to delay the costs decision further until he, or whatever new counsel he retains (if any) is ready to send further submission(s), to which Ms. Piccoli would be entitled to respond. I am unprepared to further string out this single aspect of the case.

[6] At the settlement conference I offered some very clear and strong opinions to Mr. Meidell, which, it became clear, he rejected.

[7] Also at the conference, I ordered that Mr. Meidell prepare and serve certain documentation regarding his undertakings that he had given quite some time ago. Although the time to produce those reconciliations has not yet expired (he still has six days to do so), Ms. Piccoli has not yet received any of the documents ordered.

[8] While Mr. Meidell certainly has a right to vigorously contest the claim advanced against him for spousal support, he also has a duty pursuant to Rule 2 (2), (3) and (4) (as does every litigant, represented or not) to save expense and time.

[9] I am not persuaded that that Rule 2 duty is presently Mr. Meidell’s focus. Indeed, by his actions and in my opinion, it appears the opposite. As a result of Mr. Meidell’s approach to this case, Ms. Meidell is thereby forced to incur significant legal expense on the journey to finality.

[10] Rule 24 and the case law, directs that I am to decide costs “in a summary manner” and in a flexible and balanced way (see Ostapchuk v. Ostapchuk, 2003 CanLII 57399 (ON CA), 2003 CarswellOnt 1661, [2003] O.J. No. 1733 (C.A.)).

[11] I have decided that Mr. Meidell should be held responsible for Ms. Meidell’s costs of the settlement conference “step”. The amount of the costs must be determined after considering the “Factors” delineated in rule 24 (11) as follows:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) 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;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[12] The costs award, as well, must represent a fair and reasonable amount that should be paid by Mr. Meidell, rather than any exact measure of the actual costs to Ms. Meidell: see Zestra Engineering Ltd. v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.).

[13] I am also required to make an assessment of a sensible and fair result consistent with what the unsuccessful party might reasonably have expected to have to pay: Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440, [2004] O.J. No. 4651 (C.A.). The costs assessment, as well, must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created: Pagnotta v. Brown, 2002 CarswellOnt 2666 (Sup. Ct.).

[14] To my mind, a balanced, fair costs award to Ms Meidell for this latest step in the case should be $5,000, inclusive of disbursements, plus HST.

[15] All of this costs order relate to the issue of spousal support. They are “legal fees or other expenses arising in relation to support or maintenance” and, as such, should be enforceable by the Director. See s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (as am.); Wildman v. Wildman (2006), 2006 CanLII 33540 (ON CA), 82 O.R. (3d) 401 (C.A.).

[16] In order that I emphasize to Mr. Meidell that by maintaining his resistance to the reasonable claim by Ms. Meidell for spousal support, he not only exposes himself to further future costs orders, but he must pay this costs order forthwith.

G.A. Campbell J.

Released: January 18, 2013