DM v TK

The Court addressed an Application to amend or clarify a costs Order after the Respondent filed a consumer proposal under the Bankruptcy and Insolvency Act, proposing to pay only a fraction of the awarded costs. The Applicant sought the Court’s discretion to issue an amended costs Order under: (i) Rule 9.12, which permits the correction of mistakes or errors in a Judgment or Order resulting from an accident, slip, or omission, and (ii) Rule 9.14, which allows the Court to provide any remedy a party is entitled to in relation to the Judgment or Order, provided that such relief does not require varying the original Judgment or Order. Specifically, the Applicant requested that the Order clarify that costs be characterized as “maintenance” under the Maintenance Enforcement Act, and therefore enforceable despite bankruptcy.

The Court held that it was not functus officio and that it retained jurisdiction under Rule 9.14 to apportion a costs award after Judgment, even where one party had entered bankruptcy proceedings, as long as doing so did not vary the original Order but clarified the nature of the costs. Relying on caselaw, the Court confirmed that costs related to support or maintenance may be identified post-Judgment because such amounts fall within the exception in Section 178(1)(c) of the Bankruptcy and Insolvency Act and are not discharged in bankruptcy. The Court rejected the procedural objection that no formal Application had been filed, emphasizing efficiency and proportionality in family proceedings.

On the merits, the Court reviewed the underlying litigation and apportioned the costs based on the time and substance of the issues litigated. It found that approximately 60% of the proceedings concerned support and maintenance issues, including flight expenses and child-related financial obligations, while the remainder involved jurisdictional and parenting schedule matters. That 60% portion ($8,251.20) was therefore characterized as maintenance and ordered to remain payable under the existing instalment plan, notwithstanding the Respondent’s consumer proposal.