2023 MBKB 34, 2023 MBKB 34

Date: 20230221 Dockets: FD 20-02-09130 (Brandon Centre) Indexed as: J.M.D. v. M.E.S. Cited as: 2023 MBKB 34 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: Appearances/Counsel J.M.D., ) Petitioner, ) MICHAEL DAVIDS ) for the Petitioner - and - ) ) ) M.E.S., ) Respondent. ) KAREN WEBB ) for the Respondent ) ) JUDGMENT DELIVERED: ) February 21, 2023 LEVEN J.

SUMMARY [ 1 ] This was a family law dispute about parenting time and other issues. The petitioner filed her Petition, but the respondent failed to file his Answer. Both parties had counsel. After some email warnings, default was noted. The respondent moved to set aside default. At the hearing, it became obvious that the respondent’s lawyer had shown an extreme lack of diligence. As explained below, as the best interests of the children were paramount, and as the client should not be punished for the lawyer’s failings, the notation of default was set aside, with costs to the petitioner in any event of the cause.

FACTS [ 2 ] The Family Maintenance Act , C.C.S.M. c. F20 (“ FMA ”), applied to the litigation. The petitioner filed her petition, requesting parenting time, child support, protective relief, and costs, on October 18, 2021, and served the respondent on November 1, 2021. Both parties had lawyers. There is no dispute that the respondent was served. [ 3 ] The respondent filed no Answer. The petitioner’s lawyer emailed the respondent’s lawyer on March 8 and March 22, 2022, warning her that he would note default if she did not file an Answer by March 31. There was no response, and default was noted on April 12, 2022.

There never was a default judgment. [ 4 ] On June 21, 2022, the respondent’s lawyer filed a motion to set aside default. There was no supporting affidavit of any kind. [ 5 ] On December 2, 2022, the petitioner filed a motion (with supporting affidavit) for

summary judgment and an order striking the respondent’s motion to set aside default. The supporting affidavit dealt with the merits of the parenting time dispute and with the noting of default. [ 6 ] Finally, on January 23, 2023, the respondent filed a short affidavit, which said it was an affidavit for the purpose of the motion to set aside default.

It included some uncontentious information (e.g. the birth dates of the three children), some facts slightly relevant to the parenting time dispute, and one fact that might be relevant to default (that the respondent lives in Oak Lake, Manitoba, has no driver’s licence, and had difficulty getting to Brandon to meet with his lawyer). At the motion hearing, the respondent’s lawyer explained that

she does not travel to Oak Lake. (The drive from Oak Lake to Brandon is roughly 40 minutes.) [ 7 ] The petitioner filed a motion brief on February 1, 2023. The respondent’s lawyer filed a brief on February 6, 2023. [ 8 ] The parties disagreed about whether the petitioner could properly move for

summary judgment, even though there has been no triage conference. [ 9 ] The court registry set down the two motions (to set aside default and for

summary judgment), for the same hearing before a justice on February 6, 2023. LEGISLATION Family Maintenance Act [ 10 ] Section 2(1) of the FMA says: Best interests test applies 2(1) In all proceedings under this Act the best interests of the child shall be the paramount consideration of the court. Court of King’s Bench Rules [ 11 ] Relevant provisions of the Court of King’s Bench Rules , Man.

Reg. 553/88 (“ Rules ”) include: General principle 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. 1.04(1.1) In applying these rules in a proceeding, the court is to make orders and give directions that are proportionate to the following: (

a) the nature of the proceeding; (

b) the amount that is probably at issue in the proceeding; (

c) the complexity of the issues involved in the proceeding; (

d) the likely expense of the proceeding to the parties. Orders on terms 1.05 When making an order under these rules the court may impose such terms and give such directions as are just. Terms 19.03(1) the noting of default may be set aside by the court on such terms as are just. AWARD AND FIXING OF COSTS BT COURT Factors in discretion 57.01(1) In exercising its discretion under

section 96 of The Court of King'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… Purpose of family proceedings rules 70.02.1(1) The purpose of this Rule is to (

a) help parties resolve the legal issues in a family proceeding fairly and in a way that will (

i) take into account the impact that the conduct of the proceedings may have on a child, and (ii) minimize conflict and promote cooperation between the parties; and (

b) secure the just, most expeditious and least expensive determination of every family proceeding on its merits . Proportionality 70.02.1(2) Securing the just, most expeditious and least expensive determination of a family proceeding on its merits includes, so far as is practicable, conducting the proceeding and allocating appropriate court resources to the proceeding in ways that are proportionate to (

a) the interests of any child affected; (

b) the importance of the issues in dispute; (

c) the amount of support and the value of the property likely at issue in the proceeding; (

d) the complexity of the proceeding; and (

e) the likely expense of the proceeding to the parties.... [underlining added] Time for filing and serving answer 70.07(3) An answer shall be filed and served within the period prescribed under Rule 18 for filing and serving a statement of defence. [20 days within Manitoba]… Default to be noted by registrar 70.11(1) Default in filing an answer within the time prescribed by this Rule shall be noted by the registrar upon poof of service of the petition. Determination of uncontested petitions

70.12 Where a respondent (

a) is noted in default under rule 70.11; or (

b) files a notice withdrawing opposition (Form 70L); the petitioner may, by filing a requisition, set the petition down for determination by a judge solely on affidavit evidence, without an oralhearing and without an appearance by the parties or their lawyers. If the judge determines that an oral hearing is required in order tomake a proper determination, the judge may set a date for the parties to appear before that judge for an oral determination… Considerations 70.18.1(2) A judge must allow a motion for

summary judgment to proceed if he or she is satisfied that the

summary judgment motioncan achieve a fair and just adjudication of the issues in the action by providing a process that (

a) allows the judge to make the necessary findings of fact; (

b) allows the judge to apply the law to the facts; and (

c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. Orders and directions 70.18.1(3) A judge may make any order or give any direction that he or she considers necessary or appropriate respecting the conduct ofa

summary judgment motion, including an order or direction respecting the evidence in the motion and timelines for the completion ofany step relating to the motion. Restrictions on motions or applications prior to triage conference 70.24(10) Subject to subrules (11) and (12), no motions or applications in a family proceeding may be brought before a judge until thetriage conference for the family proceeding is held. [underlining added] CASE LAW [12] Counsel for the petitioner relied on De Rzonca v. Kummerfeld, (MB CA) (“De Rzonca”).

It was a civilproceeding (not a family proceeding) governed by a much earlier version of the Rules. A trial date was set, and the defendant failed toattend. A judgment ensued and the defendant moved in County Court to set aside the judgment. The County Court judge declined to setaside the judgment and the Court of Appeal upheld that decision.

On the final page of the appeal decision, the court commented that, … Mere delay will not be a bar to the application unless an irreparable injury will be done to the plaintiff or the delay had been wilful.The application should be supported by an affidavit setting out the circumstances under which the default arose… [13] Winkler Credit Union v. Muz and Groening, (MB CA) (“Winkler Credit Union”) was another civilproceeding. At paragraph 2, the court quoted De Rzonca with approval. At paragraph 5, the court observed that one of the defendant’slawyers “was not paying attention to his client’s affairs”.

Later in paragraph 5, the court concluded that “the neglect of [the defendant’s]then solicitor should not be visited upon him.” [14] GFK Capital Base Corp. v Fernando, (MB CA) was another civil case. At paragraphs 11 and 13, the courtquoted De Rzonca with approval. This case involved a default judgment (not a mere noting of default). At paragraph 12, the courtcommented that the party wishing to set aside default judgment should normally have to prove an “arguable” defence and to prove thatthe defendant’s wish to defend the action is “genuine”.

[15] Beardy v. Sass, (MB CA) (“Beardy”) represented a change in focus. It was another civil proceeding. TheRules had changed and, at paragraph 13, the court observed that De Rzonca had “little relevance” in cases where default had been noted,but no default judgment existed. In such cases, there is no burden on defendants to establish a valid case on the merits. At paragraph 15,the court added that defendants must demonstrate that they proceeded with all possible dispatch after the noting of default, and must fileaffidavit evidence about the default. [16] Bank of Nova Scotia v.

Kostuchuk, 2003 MBCA 66 was a case with unique facts. After default judgment, the defendant paidthe judgment. Later, the plaintiff realized that the statement of claim had claimed an incorrect amount of money, and sought leave to setaside the judgment and amend the statement of claim. The plaintiff was allowed to do so, but the defendant was awarded compensationby way of costs. [17] Two Manitoba Queen’s Bench Family Division (as it was then called) cases should be mentioned. J.M.P. v. A.A., 2006 MBQB220 (“JMP”), was a dispute about parenting time and related issues.

At paragraphs 15-16, the court mentioned Beardy with approval. At paragraph 17, the court summarized the relevant principles for setting aside the noting of default:

a) Was there a bona fide intention to defend the petition or an explanation to as to why an answer was not filed earlier;

b) Was there any undue delay or delay that would cause irreparable injury to the petitioner. [18] In JMP, the issues involved children of the parties. The petition was filed; there was some discussion between the lawyers aboutnoting default if an Answer were not filed; the lawyers continued to communicate back and forth for a year or so; the respondentchanged lawyers; the petitioner noted default without warning; the respondent got a new lawyer, who moved fairly quickly to try to setaside default (either by consent or by court order); and a supporting affidavit was filed with the notice of motion.

At paragraph 38, thecourt quoted from Winkler Credit Union with approval to the effect that parties should not be penalized for the oversights of theirlawyers. At paragraph 39, the court concluded that there was no irreparable injury to the petitioner. The court added: “While there is anonus on a party seeking to set aside default to do so with dispatch, it would be unfair to apply unreasonable or onerous time constraints.” The court set aside default and gave the respondent 20 days to file an Answer. [19] Finally, Draho v. Cardno, 2020 MBQB 190 (“Draho”), was a dispute about parenting time and related issues.

The petitionernoted default 20 days after the petition was served. There was a default judgment. Fourteen days after default was noted, the respondentmoved (with a supporting affidavit and draft Answer) to set aside default. At paragraph 10, the court concluded that the delay was not“undue” and that there was no irreparable harm to the petitioner.

Later in that paragraph, the court commented: Regarding the interests of the child, I would be inclined to incorporate potential harm to a child as a conceptual consideration in decidingwhether to set aside default judgment in a custody proceeding…in this particular case, it would not be harmful to the child, butpotentially very beneficial, if the court has the opportunity to consider more acutely the child’s best interests in the care and controlarrangement to be fixed, informed by both parents’ active participation. [20] The court set aside default judgment, and gave the respondent 10 days to file an Answer.

ARGUMENT The Petitioner [21] The petitioner’s counsel did not make any arguments about Rule 70.12. [22] The petitioner’s counsel argued that it would not be just to set aside default. No reason for the respondent’s delays have beenplaced in evidence. The respondent did not act without undue delay. Indeed, the respondent only filed an affidavit on January 23, 2022,about nine months after default was noted. [23] The petitioner’s counsel acknowledged the existence of Rule 70.24(10) (the “Triage First Rule”). However, he argued that Rule70.18.1 (‘the

Summary Judgment Rule”) is worded broadly. Furthermore, the Rule dealing with proportionality in family proceedings(Rule 70.02.1) provides some guidance on the proper procedure for this litigation. [24] Therefore, under the circumstances of this case, it would be appropriate to award the petitioner

summary judgment as per hermotion. [25] The petitioner argued that either he should receive costs or, at worst, costs should be in the cause. The Respondent [26] The respondent’s counsel focused on the fact that the respondent lives in Oak Lake (as explained in his affidavit) but his counsel,who is based in Brandon, does not travel to Oak Lake (a fact not found in any affidavit, but essentially uncontentious). [27] The respondent’s counsel argued that the Triage First Rule trumps the

Summary Judgment Rule.

Summary judgment is not oneof the narrow exceptions (such as emergent hearings) listed in the Triage First Rule. [28] The Triage First Rule, with all the “new” family proceedings rules, was intended to eliminate the excess of preliminary motions,which had plagued the old system. To allow

summary judgment motions to be heard before triage would open the floodgates andcompletely undermine the “new” system.

[ 29 ] Counsel argued that the

summary judgment motion should be adjourned to the triage conference. If default is set aside, counsel could file an Answer within about a week, and counsel would make reasonable efforts to expedite triage. [ 30 ] The respondent argued that either no costs should be awarded, or costs should be in the cause. FINDINGS [ 31 ] Firstly, I note that, in family proceedings involving children, the best interests of the children are paramount.

The principles for setting aside the noting of default in civil ligation must be modified for family proceedings involving children, to make the best interests of the children paramount. [ 32 ] Although the motion to set aside default should have been heard by a Master, the two motions were intertwined, both motions were set down for hearing, and counsel wanted me to deal with both at the same time.

Applying Rule 70.02, in order to avoid further delay, and bearing in mind that delay could only prejudice the best interests of the children, it is sensible to dispose of both motions. [ 33 ] Among other things, the case law on setting aside the notation of default suggests that clients should not be penalized for the failings of their lawyers ( Winkler Credit Union , JMP ). In the case at bar, the respondent’s lawyer obviously failed in a multitude of ways. She should either have filed an Answer before the deadline, or written to the petitioner’s lawyer before the deadline requesting an extension.

If she had drafted an Answer but was having trouble getting her client to sign a hard copy, she might at least have emailed a draft to the petitioner’s lawyer as part of her extension request. Instead, she did nothing at all for over four months. [ 34 ] After about four months, the petitioner’s lawyer graciously emailed the respondent’s lawyer, offering her a final chance to file her Answer, but warning her that, if she failed to file it by March 31, 2022, default would be noted. She did nothing. [ 35 ] The petitioner’s lawyer repeated the gracious offer on March 22, 2022.

Again, the respondent’s lawyer did nothing. [ 36 ] The petitioner’s lawyer noted default on April 12, 2022. The respondent’s lawyer did nothing for two months. Finally, on June 21, 2022, she filed a motion to set aside default. There was no supporting affidavit. Obviously, the petitioner’s lawyer did not offer his consent to the concept of setting aside default. (An affidavit might be academic in cases where both parties consent.) [ 37 ] The petitioner’s lawyer filed his motion for

summary judgment, and the court registry set down both matters for a hearing before a justice on the same date. Finally, on the eve of the hearing, the respondent’s lawyer had her client sign a short affidavit that touched upon the default indirectly (explaining the respondent’s lack of a driver’s licence and difficulties getting rides from Oak Lake to Brandon). The respondent’s lawyer did not bother to prepare a draft Answer and attach it to the affidavit.

Nor did she bring a draft Answer to the hearing, to hand to the petitioner’s lawyer even on an informal basis. [ 38 ] At the hearing, the respondent’s lawyer argued that she does not travel to Oak Lake and, because her client has difficulty getting a ride to Brandon, that she had difficulty getting her client to sign documents. She also said that she preferred not to mail documents to her client for signature. She said that the respondent has email. There was no evidence before the court about whether the respondent owns a printer and/or a scanner.

For that matter, none of what the respondent’s lawyer said was “evidence” (as opposed to argument). [ 39 ] The respondent’s lawyer did not suggest in any way that there had been any sort of breakdown of confidence between lawyer and client. [ 40 ] There is no polite way to say this, but the respondent’s lawyer exhibited an extreme lack of diligence for over a year (between the date the petition was served and the date of the hearing).

However, as noted above, courts should hesitate to punish clients for the procedural failings of their lawyers. [ 41 ] There was no evidence that setting aside default would cause any irreparable injury to the petitioner. [ 42 ] Even more importantly, where the main issue is parenting time, the best interests of the children are paramount over all other considerations (as per Draho ). When in doubt, courts should err on the side of providing maximum protection for the potential best interests of children. The respondent’s supporting affidavit did provide some brief evidence about the parenting time dispute.

The respondent should be allowed to have his “day in court” to argue about the merits of the parenting time dispute. [ 43 ] However, the petitioner (who was the “innocent party” in the default dispute), should have costs in any event of the cause. Furthermore, the respondent must file his Answer within 14 days of receiving these reasons for decision. [ 44 ] The petitioner’s novel argument about how the

Summary Judgment Rule should “trump” the “Triage First” Rule was creative, but cannot possibly prevail. I agree that the

Summary Judgment Rule is fairly broad. [ 45 ] The

Summary Judgment Rule does not explicitly say that a motion for

summary judgment must never be made before triage. Indeed, the Rule does not comment on the precise timing of

summary judgment motions. [ 46 ] The Proportionality Rule is a statement of judicial philosophy. If other Rules give courts multiple options, then the Proportionality Rule kicks in and gives guidance to the courts about how best to choose an option. Note that the Proportionality Rule refers to a determination of a proceeding “on its merits”. [ 47 ] The “Triage First” Rule [Rule 7.24(10)] does not give family courts multiple options.

With certain narrow exceptions (which are not relevant to this litigation), family proceedings MUST begin with a triage conference (“no motions or applications…may be brought before a judge until the triage conference…is held”). Various Practice Directions explain that this Rule is designed to eliminate the excess of preliminary motions that plagued the old system. [ 48 ] As a practical matter, if

summary judgment motions were allowed before the triage conference, the floodgates might well open

to an abundance of frivolous (or premature)

summary judgment motions before triage. This would completely undermine the “new” system of family proceedings. [ 49 ] The petitioner’s motion for

summary judgment is adjourned to the triage conference (which both parties are encouraged to expedite). Of course, counsel are encouraged to discuss potential settlement. If the parties can resolve their dispute, the question of

summary judgment will become academic. [ 50 ] The petitioner’s brief included a passing reference to Rule 70.24(4)(p.1), which refers to motions to “dismiss, strike or stay a proceeding”. The petitioner’s motion included, as an alternative remedy, the striking of the respondent’s motion to set aside default. In substance, the petitioner simply opposed the respondent’s motion. This does not provide some sort of procedural back door to avoiding the triage process. [ 51 ] To summarize, default is set aside; the respondent must file his Answer within 14 days; the

summary judgment motion is adjourned to the triage conference, and the petitioner shall have regular (tariff) costs for this hearing, in any event of the cause. __________________________J.