This is a “somewhat unusual” appeal. The Appellant, the Director of the Child, Youth and Family Enhancement Act (“CYFEA”) took no issue with the substance of a Provincial Court’s refusal to provide an Application for a permanent guardianship order (“PGO”) of a child. However, the Appellant asserted on appeal that the Provincial Court lacked authority to award costs in such circumstances. The Respondent Mother argued that she alerted the Director through counsel that if the matter proceeded to trial and she successfully contested the PGO, she would claim costs on a solicitor-client basis.

The underlying decision Provincial Court Decision found that the Director acted contrary to the best interests of the child in proceeding with the PGO and ordered the Director to pay full indemnity Costs to the Respondent.

Hillier J. noted that, for proceedings under the CYFEA, the language of Reg 10(2) purports to restrict the general power to award costs specifically against the Director. The Court relied upon Rule 10.31 which prescribes the Court’s discretion to award costs having regard to factors listed in Rule 10.33. The Court held that the circumstances in this case were exceptional and merit the exercise of discretion to redress the impact on the Mother and her family. The Court also held that there were a number of cases which confirmed that an award of costs against the Director must meet a test of special or unusual circumstances. As such, the Court upheld the order for the Director to pay the full costs the Mother incurred in respect of the application for a PGO including the steps to recover costs at the Provincial Court Level. The Court also awarded costs to the Mother for the Appeal on a full indemnity basis.