LYLE CRAIG MERKLEY v. CARLINE ANTONIA VANDENELSEN and LAWRENCE ROSS FINCK 2003-12-08 Stratford R03-208 Abduction

COURT FILE NO.: Stratford R03-208

DATE: 2003-12-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LYLE CRAIG MERKLEY v. CARLINE ANTONIA VANDENELSEN and LAWRENCE ROSS FINCK

AND IN THE MATTER OF:

COURT FILE NO.: Stratford R01-135

RE: CARLINE ANTONIA VANDENELSEN v. LYLE CRAIG MERKLEY

BEFORE: G. A. CAMPBELL J.

COUNSEL: Alfred A. Mamo, for Lyle Craig Merkley

Carline Antonia VandenElsen and Lawrence Ross Finck

appearing on their own behalf

E N D O R S E M E N T A S T O C O S T S

[1] The reasons for judgment are clear that Mr. Merkley was entirely successful and that Ms. VandenElsen and Mr. Finck, by their actions, precipitated the motion and unnecessarily and unduly prolonged the court attendances. Their behaviour falls entirely within the definition in the rules of unreasonable behaviour and being unprepared for the hearing. Their tactics of refusing to accept rulings made during submissions and their persistence of returning to re-argue issues previously determined, as well as, for example, delaying the proceeding by Ms. VandenElsen's non-attendance at the outset (and later at times throughout), prolonged what was scheduled for one day into a full two-day hearing.

[2] Although Ms. VandenElsen's and Mr. Finck's behaviour was confrontative and outrageous at times, I am of the view that it did not achieve the level of "bad faith" per subrule 24(8) of the Family Law Rules, O.Reg. 114/99, as it has become defined by case law. See Leonardo and Leonardo v. Meloche and Leonardo (2003), 122 A.C.W.S. (3d) 1074, [2003] O.J. No. 1969, 2003 CarswellOnt 1920 (Ont. Fam.Ct.) per Justice Jennifer A. Blishen.; Hendry v. Martins (2001), 104 A.C.W.S. (3d) 115, [2001] O.J. No. 1098, 2001 CarswellOnt 952 (Ont. Fam.Ct.) per Justice Grant A. Campbell; and Erickson v. Erickson (2000), 122 A.C.W.S. (3d) 1075, [2000] O.J. No. 5789, 2000 CarswellOnt 5809 (Ont. Fam.Ct.), per Justice V. Jennifer Mackinnon.

[3] By the rules, Mr. Merkley is certainly entitled to his costs, on a substantial indemnity basis.

[4] The issue remains of the ability of Ms. VandenElsen and Mr. Finck to pay costs because of their apparent impecuniosity. Counsel argues that their inability to pay costs is self-imposed by them as a strategy; namely, that they overuse the administration of justice while rendering themselves protected or immune from consequence by choosing not to seek employment in the fields of their training. He submits that it is unfair to the self-financed Mr. Merkley. Mr. Merkley is forced, by their behaviour, to go to court frequently, at his own expense, with no financial consequence whatsoever to Ms. VandenElsen and Mr. Finck.

[5] There is an increasing body of case law that addresses unrepresented and impecunious litigants: see Panny v. Gifford and Gifford (1997), 31 R.F.L. (4^th) 440, [1997] O.J. No. 2241, 1997 CarswellOnt 2028 (Ont. Prov.Div.), per Provincial Judge Louise L. Gauthier and Smith v. Smith (2000), 12 R.F.L. (5^th) 216, [2001] O.J. No. 5051, 2000 CarswellOnt 5005 (Ont. Fam.Ct.), per Justice V. Jennifer Mackinnon. In the latter case, Justice Mackinnon observed at paragraph [6]:

[6] Nor do I agree that self-representing oneself provides protection from an award of costs. Those who represent themselves, including in custody and access matters, must make a reasonable assessment of their chance for success and their potential exposure to an adverse award of costs, as part of their decision-making process in initiating a step in a legal action.

[6] I believe that the current state of the law is that a litigant's meager financial resources do not afford immunity from a costs order but will affect the scale (or quantum) of such a costs award. See Kearney v. Kearney (2001), 107 A.C.W.S. (3d) 198, [2001] O.J. No. 3290, 2001 CarswellOnt 2791 (Ont. C.J.), per Justice Marvin A. Zuker; and Church v. Church (No. 2) (2003), 124 A.C.W.S. (3d) 105, [2003] O.J. No. 2811, 2003 CarswellOnt 2621 (Ont. Fam.Ct.), per Justice Craig Perkins.

[7] Subrule 24(10) mandates that costs be addressed and considered at each step in a proceeding. Counsel for Mr. Merkley includes in his submission for costs, all of his services for this latest part of this long and high-conflict litigation. My order does not include preparation and attendances before other judges.

[8] Therefore, after considering

· the "Factors in costs" listed in subrule 24(11);

· Mr. Merkley's submissions (and his counsel's indication that the bill of costs for professional services rendered for this most recent round of litigation for which he is responsible, exceeds $20,000) and

· the apparent inability of Ms. VandenElsen and Mr. Finck to pay any order of costs,

the court orders costs payable forthwith by Ms. VandenElsen and Mr. Finck, jointly and severally, set in the amount of $12,500, plus disbursements of $350 and any G.S.T. that is attracted thereto.

"Justice Grant A. Campbell"

___________________________

Justice Grant A. Campbell

DATE: December 8, 2003