2023 MBKB 123, 2023 MBKB 123

Date: 20230815 Docket: FD 21-01-27857 (Winnipeg Centre) Indexed as: Hudson v. Hudson Cited as: 2023 MBKB 123 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: VICKI JUANITA HUDSON, also known as ) Jessica A. Schofield VICKI JUANITA PETERS, ) for the petitioner ) petitioner, ) ) Kerry L. UnRuh ) for the respondent - and - ) ) lyall james hudson, ) Stephanie Barros ) for Abigail Esther Doucet, applicant respondent. ) for access to a family proceeding file ) ) Judgment Delivered: ) August 15, 2023 REMPEL J.

Introduction [ 1 ] Rule 4.10 of The Court of King’s Bench Rules , M.R. 553/88 (the “ Rules ” ), which came into effect in the spring of 2022, restricts public access to every file in the Family Division (the “FD File” or “FD Files” as the case may be). The rule limits who can access an FD File other than litigants and their counsel. Rules 4.10(1) to 4.10(5) set out the limitations on access to FD Files and they are attached to these reasons as

Schedule “A”. [ 2 ] At issue in this case is a potential order for costs against an unsuccessful third party which sought access to the FD File in this matter. Counsel were unable to find a binding authority that addresses costs in cases where non-parties seek access to an FD File under rule 4.10. This case invites me to address that narrow point. Decision [ 3 ] I am satisfied that the unsuccessful third-party applicant should pay costs to the petitioner in these circumstances. The respondent made no submissions as to costs and reserved the right to apply for same at a later stage in the litigation.

My reasons as to the request of the petitioner for costs follow. Facts [ 4 ] Abigail Esther Doucet (“Ms. Doucet”) filed a request to access this FD File, which involves her former partner, the respondent in this action (the “Father”), with whom she has a child. The parenting arrangements with respect to the child of Ms. Doucet and the Father are hotly disputed and are the subject matter of active litigation on another FD File in this court. A registry search shows over 300 documents have been filed in the litigation between Ms. Doucet and the Father. [ 5 ] The reason advanced by counsel for Ms.

Doucet with respect to access to this FD File had to do with her desire to coordinate the

schedule for the care and control for her child with the children the Father has with the petitioner in this matter, which also includes a dispute as to parenting arrangements. Ms. Doucet was aware an order was made in this matter with respect to the appointment of a family evaluator tasked with the preparation of an assessment report, which she presumed would also include information about her child. [ 6 ] Counsel for the petitioner took strong exception to Ms. Doucet’s request for access to this FD File by stating in part that a copy of the order issued by the presiding judge with respect to parenting arrangements in this matter had already been provided to counsel for

Ms. Doucet as a courtesy. The request for full access to this FD File, apart from documents on the “B-File” such as the assessment reportitself, was described by counsel for the petitioner as

an act of “mischief”. Counsel for Ms. Doucet was put on notice that the petitionerwould be seeking costs if the request for access should proceed to a contested hearing and be denied. First Principles as to Costs [7] Rule 57.01 sets out various factors judges may consider with respect to an award of costs, including conduct by a party involvedin the litigation, and how costs are to be assessed. Rule 57.01(1) provides: 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, inaddition 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 whoare unnecessarily represented by more than one counsel; and (

h) any other matter relevant to the question of costs. [8] Awarding costs involves the exercise of discretion on the part of the judge who ultimately rules on the matter in dispute. Although the discretion of a judge in Manitoba as to an award for costs under s. 96 of The Court of King's Bench Act, C.C.S.M. c. C280(the “Act”), is a broad one, it is still circumscribed by the discretionary factors set out in rule 57.01 and the appellate authorities. (SeeBibeau et al. v.

Chartier et al., 2022 MBCA 2 , at paras. 51 and 88.) [9] The discretion as to costs described in s. 96 of the Act flows from the inherent jurisdiction of a superior court to control its ownprocess in order to ensure trial fairness. Section 96(1) provides that: Costs 96(1) Subject to the provisions of

an Act or the rules, the costs of or incidental to, a proceeding, or a step in a proceeding, are in thediscretion of the court and the court shall determine liability for costs and the amount of the costs or the manner in which the costs shallbe assessed. [10] The most recent authority from the Supreme Court of Canada that speaks to the inherent jurisdiction of superior courts in Canadais R. v. Khasi, 2023 SCC 20 .

Although the Khasi decision involved the inherent jurisdiction powers in the context of theappointment of amicus curiae, it still speaks to how the inherent jurisdiction power is tied to the “just adjudication” of any particularmatter before a superior court. Paragraph 36 of Khasi teaches: [36] The power to appoint amicus curiae flows from the inherent jurisdiction of superior courts to manage their own procedure to ensurea fair trial (CLAO, at para. 46; I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, at pp. 27-28).

Thisjurisdiction empowers a superior court judge to appoint amicus when the judge believes doing so is required for the just adjudication of acase. The power of a statutory court to appoint amicus is necessarily implied from the court’s authority to control its own process andfunction as a court of law (CLAO, at paras. 12 and 112).

The discretionary power to appoint amicus should be used “sparingly and withcaution, in response to specific and exceptional circumstances” that arise (para. 47). [Emphasis Mine] [11] I think a comment on solicitor-client costs is warranted here to complete this quick review as to the first principles applicableregarding an award of costs, even though this is not a case where solicitor-client costs are appropriate or sought.

It bears repeating thatthe case law does not necessarily support punishing an unsuccessful party with solicitor-client costs even in cases where allegations ofmisconduct or dishonesty are made and ultimately found to be unsubstantiated. [12] The case law that describes conduct that merits solicitor-client or elevated costs is reviewed in Bibeau at paras. 89 to 92. Position of the Applicant [13] The position advanced by counsel for Ms. Doucet at the contested hearing was that she wanted full access to the complete FD

File (other than the “B-File”) and she would act as a gatekeeper in deciding what, if any, evidence or information her client should have access to. The proposal to act as a gatekeeper was motivated in part by the desire of Ms. Doucet to determine if she should request an assessment report in her client’s litigation with the Father. [ 14 ] Counsel for Ms.

Doucet was candid in admitting she was interested in obtaining information related to the home assessment in this matter but not reading the assessment report itself which she could not access on the “B-File” in any event. [ 15 ] In the main, the applicant argued that the best interests of her son and the children of the applicant are intertwined to such an extent in the two FD Files that neither the applicant nor the court can properly assess how to protect the best interests of her son without knowledge as to all of the key evidence relevant to all of the Father’s children that is being contemporaneously litigated in this court. [ 16 ] To demonstrate the bona fide nature of her argument and her belief in transparency, the applicant indicated she was prepared to consent to the petitioner having unfettered access to “her” FD File which details her dispute with the Father.

Ultimately, it was the position of the applicant that her desire to pursue the best interests of her son could not be described as mischief and should not attract costs. At worst, the applicant submitted that an award of costs of no more than $250 was warranted. Anaylsis [ 17 ] An application for access to an FD File involves a balancing of interests between the privacy rights of an individual litigant and the open court principle. Rule 4.10 represents an attempt to strike a fair balance between these competing interests.

It is clear that in drafting Rule 4.10 a lot of thought was given to the fact that an FD File often contains information about a person or a member of their family that is intensely personal and private.

This may include health or financial information about a litigant that would violate their personal integrity or expose them to potential personal or financial risks if such information was made public. [ 18 ] In this case the petitioner correctly argues that even if the applicant cannot read the home assessment report itself, a lot of the information contained in that report can be gleaned from the affidavits that have been placed on the record. Some of that information pertains to highly personal matters about the health and financial circumstances of the petitioner and her children.

In my view, the privacy interests of the petitioner and her children greatly outweigh any right to know that the applicant may have as a member of the public. [ 19 ] In these circumstances the applicant should not be given carte blanche to sift through the FD File in this matter in search of evidence that supports her claims against the Father, while putting the privacy of the petitioner at risk.

Although that kind of process will entail significantly more costs for the applicant, it represents the only option that fairly protects the privacy interests of the petitioner in these circumstances. [ 20 ] If the applicant needs more information about the Father before she decides if a home assessment in her litigation is desirable, she should pursue whatever options might be open to her under the Rules . These options might include further discovery or examinations of the Father. [ 21 ] Further, the applicant cannot fairly argue that her ability to arrive at a parenting

schedule involving her child is dependent on her knowledge of the arrangements involving the children of the petitioner. That information, as recorded in the order of the presiding judge, was made available to her by counsel for the petitioner.

Conclusion [ 22 ] I am prepared to impose an order of costs against the applicant in these circumstances under the inherent jurisdiction of this court to protect the rights of the litigants to a fair trial process. [ 23 ] It goes without saying that litigation is an expensive process and third parties should carefully consider making requests for access to FD Files that add to the burden facing litigants who quite properly wish to protect their privacy and the privacy of their children.

The question remains as to how to apply costs without any explicit reference to descriptions for costs in the Rules for access requests to FD Files. [ 24 ] The applicant is correct in stating that an access request is not akin to the process of a contested motion described in the Tariff. Rule 4.10 is a simple process that does not entail the drafting or filing of a motion or paying a filing fee.

Further, Rule 4.10 does not offer opportunities to respond to a request for access or demand the filing of materials in support or opposition of a request or even the drafting of a final order. [ 25 ] Notwithstanding the simplicity of the process, it must be recognized that any contested court appearance invariably becomes an expensive process, because it involves, at a bare minimum, one hour of time when preparation and travel time are added to the actual contested hearing. [ 26 ] In the circumstances I am prepared to allow costs to the petitioner of $500 plus the applicable taxes, which is double the amount of an attendance at an uncontested hearing under the tariff of costs.

Given the fact that counsel submitted briefs at my request, I am also prepared to award the petitioner further costs of $150 plus the applicable taxes for this additional step in the litigation. _________________________ REMPEL J.