L.L.L. and C.A.L. v. L.M.S. and R.J.M., 2021 MBPC 42

CITATION: L.L.L. and C.A.L. v. L.M.S. and R.J.M., 2021 MBPC 42 THE PROVINCIAL COURT OF MANITOBA THE PAS CENTRE IN THE MATTER OF: O.D.S. Born November 24, 2013 BETWEEN: L.L.L. and ) John Skinner and C.A.L. ) Dayna Zaharia ) For the Guardianship Applicants Guardianship Applicants ) ) and ) ) L.M.S. and ) Calvin J. Friesen R.J.M. ) For the Respondents ) Respondents ) ) Decision delivered ) September 16, 2021 WIEBE, CJ [ 1 ] On July 27, 2021, I rendered my decision with respect to the above-noted matter. R.J.M. was successful in this litigation. Council requested I consider the issue of costs.

R.J.M. takes the position, as the successful litigant, he should have his costs. L.L.L. and C.A.L. take the position each party should bear their own costs. [ 2 ] The regulations to the Provincial Court (Family Division) Rules provide that unless otherwise provided the Queens Bench Rules applicable to family proceedings apply to practice and procedure in the Provincial Court (Family Division) (Section 2). The Queen's Bench Rules provide factors for the court to consider on the issue of costs as follows: “57.01(1) In exercising its discretion under

section 96 of The Court of Queen’s Bench Act, to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing, (

a) the amount claimed and the amount recovered in the proceeding; (

b) the complexity of the proceeding; (

c) the importance of the issues; (

d) the conduct of any party which tended to shorten or lengthen unnecessarily the duration of the proceeding; (d.1) the conduct of any party which unnecessarily complicated the proceeding; (d.2) the failure of a party to meet a filing deadline; (

e) whether any step in the proceeding was improper, vexatious or unnecessary; (

f) a party’s denial or refusal to admit anything which should have been admitted; (f.1) the relative success of a party on one or more issues in a proceeding in relation to all matters put in issue by that party; (

g) whether it is appropriate to award any costs or more than one set of costs where there are several parties with identical interests who are unnecessarily represented by more than one counsel; and (

h) any other matter relevant to the question of costs.” [ 3 ] In addition to the above factors counsel for R.J.M. refers to the Manitoba Court of Appeal decision in Gabb v. Gabb , 2001 MBCA 19 , where at paragraph 12 , when addressing the issue of costs, the Court said: “[12] Costs are quite a different matter. No authority need be cited for the proposition that costs arising out of a court proceeding are peculiarly within the province of the trial judge… there is absolutely no justification for depriving the successful party, the wife, of reasonable costs. She won her case. Costs normally follow the event. There were no collateral or special reasons to depart from this principle."

[ 4 ] L.L.L. and C.A.L. have referred to cases where costs were not ordered against the unsuccessful party. In one case, the court found both parties were justified in their positions and therefore declined to order costs ( Reshaur v. Kristjanson , 2001 MBQB 220 ). In the second case Burla v.

Bennett (FD 18-14-00656) an unreported decision of the Manitoba Court of Queen's Bench, with judgment given September 9, 2020, the court declined to order costs against the unsuccessful party following a multi-day trial where credibility was an issue. [ 5 ] In the case at hand, L.L.L. and C.A.L. did not always take steps to promote a relationship between O. and R.J.M. While their actions were based on what they believed was best for O., those actions did cause R.J.M. additional steps in this litigation.

As one example, I refer to the Protection Order, which was issued by a Judicial Justice of the Peace, against R.J.M. based largely on the evidence provided by L.L.L. and C.A.L. That Order was set aside by Justice Champagne who indicated it should never have been issued in the first place. [ 6 ] In this case, I find no reason to depart from the principles set out in Gabb v. Gabb , supra , that costs should be awarded to the successful party.

As counsel for R.J.M. pointed out in his written submission, once the Assessment Report was provided to the parties in October 2020, it should have been evident the guardianship application was unlikely to be successful. I agree with this submission. Therefore costs post October 20, 2020 on a Class III basis, will be awarded to R.J.M. A revised Bill of Costs should be provided reflecting costs, including disbursements post October 2020 only. An exception to the post October 2020 date will be the award of costs for the Protection Order Contested hearing before Justice Champagne.

R.J.M. is entitled to the costs of that hearing as well. ________________________________ WIEBE, CJ