Going to Court and getting paid… or not | Court Costs in Family Law

An important aspect to consider with any family court application is that of court costs. For example, if you are successful, you could have legal costs awarded in your favor payable by your ex-spouse, or if you are not successful, you may be ordered to pay legal costs to your ex-spouse. It is important to understand how costs are determined, so there are no surprises if/when or you do go to court. 

Firstly, court costs are discretionary and are up to the Justice or Judge presiding at your family law or divorce hearing. Understandably, the court does not appreciate it when people waste their time, money, and court resources on Applications that do not aid in achieving the principles of proportionality, timeliness, and affordability. Therefore, it is important to consider whether appearing before a Justice or Judge is the best option to resolving your issues.

Generally, costs are awarded to the person who would be considered the ‘successful party’ and are meant to serve as a disciplinary action in an effort to helping parties focus on the reasonableness of their positions. Therefore, it is likely that an unreasonable party will have costs awarded against them.

So, what are costs? Costs are all the reasonable and proper expenses one becomes accountable for in order to carry on in a proceeding or for appearing as a party to any proceeding. In other words, they are intended to be a form of repayment for the expenses incurred as a result of the litigation. There are two classifications of costs: party and party costs and solicitor-client costs.

Party and party costs are the most common form of costs awarded and are payable by one litigant to the other. In the Court of Queen’s Bench, the amount of costs awarded are typically awarded pursuant to the scale set out in the Alberta Rules of Court. Unfortunately, party and party costs do not cover all of one parties’ legal fees incurred and typically only act as a partial indemnity. However, as mentioned, the more unreasonable a party is being the higher a court can award in costs. For example, if your ex-spouse is unreasonably withholding their financial disclosure or unreasonably refusing consent for a vacation, it is likely the court will grant you costs. If your ex-spouse is being extremely unreasonable, they may have to pay an even greater amount of costs than outlined in the Rules of Court. On the other hand, if you choose to be unreasonable yourself, you will need to be prepared to pay for the consequence

A common question we hear is “how do I get my ex to pay for my legal fees?” This is where the second classification of costs comes in. Solicitor-client costs are cost awards that generally provide complete repayment of your legal fees, however, this is rather rare. Solicitor-client costs are typically only awarded when there has been “reprehensible, scandalous or outrageous conduct” from the paying party. Generally, this means that there was some form of misconduct or deception of the court. The solicitor-client cost award amounts are typically what a lawyer could fairly charge for the presentation of the family law or divorce application that day.

In summary, if you must go to Court, and are successful, you can be paid for attending by way of costs. Alternatively, if you continue to be unreasonable or bring unnecessary applications before the court, you have to be prepared to have costs awarded against you. The court views itself as the last resort in solving disputes. As noted above, they will use cost awards to discipline parties and to discourage them from acting unreasonably or bringing applications without merit. It is strongly suggested that one takes this into consideration before deciding on whether going to court is the best option for you or whether it would be better to go to family law mediation or another type of alternative dispute resolution.

If you have any questions about bringing a potential family law application and what risks there might be, please feel free to contact us. The family law lawyers at Crossroads Law, are very experienced with the litigation process and have successfully received costs for their clients many times.

By Mat Wirove