Keown v. Mainer, (2016) 328 Man.R.(2d) 312 (QBFD)

• Judge: Johnston, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 15, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 328 Man.R.(2d) 312 (QBFD);2016 MBQB 73

Keown v. Mainer (2016), 328 Man.R.(2d) 312 (QBFD)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MY.009

Sage Lyndsey Keown (petitioner) v. Kenneth John Mainer (respondent)

(FD 05-01-76938; 2016 MBQB 73)

Indexed As: Keown v. Mainer

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Johnston, J.

April 15, 2016.

Summary:

At issue between the parties was the father's motion to terminate child support for the parties' younger child and the mother's motion for a retroactive recalculation of child support payable.

The Manitoba Court of Queen's Bench, Family Division, in a decision reported at (2015), 320 Man.R.(2d) 115, granted the father's motion and denied the mother's motion. The father sought an all inclusive costs award of $11,000.

The Manitoba Court of Queen's Bench, Family Division, awarded the father $11,000 in costs.

Barristers and Solicitors - Topic 842

Duty to court - Liability for costs - For improper conduct - [See Practice - Topic 6103 ].

Barristers and Solicitors - Topic 849

Duty to court - Liability for costs - For conduct of proceedings - [See Practice - Topic 6103 ].

Barristers and Solicitors - Topic 4012

Relations with other lawyers - General - Sharp practice - [See Practice - Topic 6103 ].

Family Law - Topic 2416

Maintenance of spouses and children - Practice - Costs - [See Practice - Topic 6103 ].

Practice - Topic 6103

Judgments and orders - Amendment, rescission and variation of judgments and orders - Slip rule, correction of errors or omissions - Under an April 2007 final order, a father paid child support for two children - The award was subject to recalculation on an annual basis by the Child Support Recalculation Service - In June 2007, counsel were notified that the award could not be recalculated without an amendment to the final order - No amendment was secured until June 2015 - This was done on requisition, under the Queen's Bench Rule to correct "clerical, typographical errors" - It was granted without notice to the father, who had brought a motion to terminate child support in November 2014, which had been followed the next month by a motion by the mother for retroactive support, which she calculated at $17,000 - The father was current in his payments on the terms of the final order - The mother's motion was denied and the father's motion was granted - The father sought increased costs - The Manitoba Court of Queen's Bench, Family Division, stated that: "To purport to correct the order as a 'typographical error,' having been served with a notice to terminate child support, is a step that this court takes an extremely dim view of. Where there are proceedings pending, and where there is counsel representing a party seeking a remedy before the court to proceed on a 'without notice' basis to correct an order that has existed and been enforced for approximately seven years is extremely concerning and conduct that merits commentary by this court. ... [T]he attempt to amend the final order administratively and without notice to the party adverse or his counsel comes perilously close to 'sharp practice' ... and/or perilously close to a circumstance where consideration might be given to personal liability for costs by counsel under Queen's Bench Rule 57.07." - The court noted, however, that no costs order had been sought on these grounds - The court also found that the mother had pursued a course of action, possibly easily viewed by a court as improper or vexatious, but definitely designed to "lengthen unnecessarily the duration of the proceeding" - Instead of negotiating or consenting to an order, she chose to best defend the meritorious claim by going on the offence - While the father had benefited from the refusal to retroactively reconsider child support on the merits, that was not germane to the issue of costs respecting the litigation process involved in securing the termination order - The court stated that "In the end, the [father] submits a bill of costs in the amount of $6,760.35, together with confirming evidence of an effective offer to settle the issue in that amount, which was refused. On that basis, particularly in light of all of the additional aggravating factors identified herein, the requested costs award of $11,000, inclusive of disbursements is merited and so ordered."

Practice - Topic 7103

Costs - Party and party costs - Special orders - Conduct by party or counsel - [See Practice - Topic 6103 ].

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - [See Practice - Topic 6103 ].

Counsel:

Marcia L. Knight, for the petitioner;

Mark G. Mercier, for the respondent.

This costs matter was heard by Johnston, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following decision on April 15, 2016.