JDB v DKM, 2020 MBCA 102

Citation: JDB v DKM, 2020 MBCA 102 Date: 20201020 Dockets: AF18-30-09130; AF18-30-09132 ; IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : J. D. B. ) A. L. Bennet ) for the Appellant (Petitioner) Appellant ) ) D. L. Takeuchi ) for the Respondent - and - ) ) Appeals heard and ) Decision pronounced: D. K.

M. ) October 6, 2020 ) (Respondent) Respondent ) Written reasons: ) October 20, 2020 steel JA (for the Court): [ 1 ] The petitioner (the mother) appealed a final order pronounced after trial in February 2018 (the final order) and an interim review of that order which was pronounced in July 2018 (the review order).

Both appeals were heard together in March 2019 with a decision issued in June 2019 ( see JDB v DKM , 2019 MBCA 68 ). [ 2 ] In the final order, the trial judge granted primary care and control of the two children to the mother; and care and control of the son, as agreed to between the parties, and specified care and control of the daughter to the respondent (the father).

The trial judge further ordered that the issue of custody be reviewable in three months in the event that the daughter did not attend to the specified periods of care and control granted to the father. [ 3 ] In the review order, since the daughter had not attended to the father’s home for those periods of care and control, the trial judge reversed primary physical care and control of the daughter from the mother to the father. The mother was ordered to have no contact with her daughter for a period of 30 days and thereafter as decided by the father.

The mother was also ordered to pay child support to the father for the daughter and costs of the trial of $5,000. [ 4 ] The appeals raised issues of custody, child support and costs. In my decision of June 2019, I dealt with the primary issue of custody since that affected all of the other issues raised in the notice of appeal. [ 5 ] In that decision, I held that “[t]he final order, with its provision for a review after three months if visitation was not taking place, was appropriate in the circumstances of this family and was within the discretion of the trial judge” (para 89).

However, with respect to the review order, I held that the trial judge erred in changing custody of the daughter to the father in the circumstances of this case (at para 94): . . . [W]hile such a remedy may be effective for a young child in an appropriate case, its use in this case in relation to the daughter was not clearly defined, did not take into account all the relevant factors and, as history has shown, according to Dr. Legge’s evidence, it has had a significantly detrimental impact on the daughter.

[ 6 ] I allowed the appeal against the review order and indicated that the parties were to have joint custody of the daughter with primary care and control and final decision-making to the mother and specified periods of care and control to the father. I further indicated that, if the parties were unable to agree on the outstanding issues of child support and costs, they could set the matters down for further hearing (see paras 104-105, 109). [ 7 ] At the hearing of that further appeal, we allowed the appeal in part with reasons to follow.

These are those reasons. [ 8 ] While the parties have been able to agree on a number of outstanding issues, they have been unable to agree on the issue of costs and the issue of international travel for the children. [ 9 ] First, we would like to confirm the issues that the parties have agreed to. They are as follows: 1. The father’s income is confirmed at $40,000 as at March 1, 2018; 2. The father will pay the mother child support of $568 per month for both children effective July 1, 2018, in accordance with the Manitoba, Child Support Guidelines Regulation , Man Reg 58/98 ; 3.

The father owes the mother child support arrears of $10,177 as at June 30, 2018; 4. Paragraph 5.3.11 of the review order requiring the mother to pay the father child support is set aside; 5. Paragraph 4.10 of the final order, which suspended payment of the arrears by the father while he incurred costs for the children’s therapists, is set aside. Costs were not incurred; 6. Paragraph 5.3.12 of the review order, which ordered that the father’s arrears be satisfied by the set-off against child support to be paid by the mother, is set aside; and 7.

The mother will have final decision-making authority for the son. [ 10 ] With respect to the question of international travel, the father remains opposed to the mother’s request that she be entitled to renew passports and travel with the children without his consent. It is his position that the mother should obtain his consent to passport applications and international travel with the children. He understands that his consent cannot and should not be unreasonably withheld, but wishes to retain the right to consent. [ 11 ] These parties separated in 2009 when their children were four and six years old.

The children are now 15 and 17 years old and the parties have been in litigation for much of that time. The mother now has final decision-making authority for both children and it would be in the interests of the children to minimise any further potential for conflict. We would therefore order that the mother be entitled to renew passports and travel without the father’s consent so long as the travel does not interfere with his periods of care and control. [ 12 ] The trial judge adjourned the issue of costs of the trial to the review motion.

At that motion, he awarded costs of $5,000 against the mother for the trial, finding that her conduct in not complying with his order warranted an award of costs against her. [ 13 ] The mother argues that the trial judge erred in assessing costs against her. Instead, she seeks costs pursuant to the tariff, and double costs for all steps subsequent to the offer to settle of November 3, 2016.

She submits that her offer was more favourable to the father than the final order and also more favourable than the decision of this Court. [ 14 ] At a minimum, she requests costs of the trial as she was largely successful, and costs normally follow success. Instead, the trial judge used the award of $5,000 against her as punishment because she had been unsuccessful in forcing the children to attend the periods of care and control with the father as he had ordered. [ 15 ] The father argues that the trial judge did not err in ordering costs against the mother.

The award of costs is in the discretion of the court and the trial judge was entitled to take into account the conduct of the mother whether or not she was the successful party. Moreover, double costs should not be awarded given that the offers to settle were unrealistic and impossible for the mother to fulfill given the conduct of the children. Decision [ 16 ] We awarded the mother costs at tariff plus disbursements of all steps in litigation after the final order in February 2018 in this Court and the Court below. We deleted the award of $5,000 in costs against the mother.

We would not make an award of double costs for actions after either of the offers to settle nor would we award costs of the trial against the father. [ 17 ] In my decision of 2019, I found that the decision of the trial judge in the final order was appropriate and within his discretion. He had evaluated the parties and the evidence after a nine-day trial.

The expert evidence at that time supported his view that the children would benefit from increased contact with their father, despite the reluctance of the children. [ 18 ] It was the decision of the trial judge some months later to change custody of the daughter from the mother to the father and new evidence introduced in this Court as to the detrimental effect this had on the daughter that led this Court to overturn the decision on the review order.

I found that he had erred in failing to consider the best interests of the daughter as a whole and instead focussed primarily on the remediation of the relationship between the father and the daughter. [ 19 ] Not only was the review order found to be in error, but there were a number of steps taken by the father after the review order that exacerbated the situation and the daughter’s anxiety. The deleterious effect of forcing contact between the father and the daughter against her will, ultimately resulted in the daughter refusing all contact with her father.

As I had previously held in my 2019 decision (at para 95):

Although the review order was supposed to be reconsidered in the “fall”, when the school year started, the father refused to allow the daughter to attend school in Winnipeg and registered her in a school in Lorette despite not having the daughter in his home or under his care, and despite his daughter continuously refusing to live with him and stating that she would not want to change schools or relocate. When the daughter refused to accompany the father to his home in Lorette, the police were called. [ 20 ] The mother was successful on every motion after the final order was pronounced in February 2018.

She should have tariff costs for those motions as well as for the review order in July 2018, but not double costs. [ 21 ] The mother was successful on the stay application and the appeal in 2019 and should have her tariff costs plus disbursements for those proceedings. With respect to this appeal, we acknowledge that, in his factum, the father consented to many of the issues raised, however, his opposition continued up until that time, requiring the mother to argue them in her factum. The mother should have tariff costs plus disbursements of this appeal as well. [ 22 ] The appeal was allowed in part. JA JA JA