ASB (RE)

A mother sought determination of costs following a contested guardianship and trusteeship Application under the Adult Guardianship and Trusteeship Act, SA 2008, c A-42 (the “AGTA”).

Justice Marion found that, as the successful party in the Application, the mother was presumptively entitled to costs. The parties were unable to agree on appropriate costs, and Marion J. directed the parties to provide further submissions on the interaction between Section 115 of the AGTA, the Adult Guardianship and Trusteeship Regulation, Alta Reg 219/2009, and the Rules of Court.

The Court held that Section 115 of the AGTA does not constitute a complete code for costs and does not displace the Court’s discretion under the Rules. Justice Marion highlighted that, where a guardianship Application resembles contested civil litigation, general costs principles under the Rules apply, supplemented by the statutory considerations in the AGTA.

Applying Rule 10.33, Marion J. considered the importance of the issues, including the interests of the represented adult and the constitutional question raised, as well as the conduct of the parties. Justice Marion found that the father’s conduct, including taking inconsistent positions, failing to provide evidence, and failing to comply with prior Orders, warranted increased costs.

The Court declined to award solicitor-client costs due to insufficient evidence of actual legal accounts. Justice Marion determined that Schedule C provided appropriate indemnity, and awarded costs based on Column 1 with a 25% inflation adjustment and a multiplier of two, excluding the portion of the Hearing related to the constitutional issue.

Accordingly, Marion J. awarded costs to the mother, inclusive of GST and disbursements, payable forthwith, and directed that each party bear their own costs for the costs determination hearing.