As a starting point, in all types of litigation costs are generally awarded to the successful party. The goal is to compensate the party in the “right”, possibly to penalize the losing party (depending on their conduct), discourage needless litigation, and act as an incentive for early settlement. However, in family law “success” is often not black and white.
Types of Costs
Costs are always discretionary. The Court has the power to award or not award costs, and can choose the type of costs that are awarded.
The Court may order a lump sum amount, taxed costs, taxed costs on a particular column (often called “Schedule C Costs”), “solicitor-client costs”, or assessed costs.
- Lump sum amount – no reference to Schedule C of the Rules of Court. For example, the Court may say “$500 in costs awarded to the Plaintiff.”
- Taxed costs – the Court will choose an amount that may be a multiple, proportion, or fraction of an amount set out in any column in Schedule C. For example, “$150 in costs awarded to the Plaintiff, being half the amount awarded under 6(1) of Column 1 in Schedule C.”
- Taxed costs on a particular column – the Court will specify a column to follow, for example, “Column 1 Schedule C costs awarded to the Plaintiff.”
- Solicitor-client costs – the Court will order one party to pay all of the reasonable costs of the other party. These costs can be awarded with respect to a specific issue or part of an action. These types of costs are awarded in extremely rare circumstances.
- Assessed costs – the Court will order that the parties attend with an assessment officer and will have costs assessed.
Reality of a Costs Award
We often hear client’s say “and he(she) can pay all of my costs because they are the one being difficult.” The truth is, often family files do not end up in Court, and it is rare that someone will volunteer to pay the other party’s costs.
When the file does end up in Court, absent of extreme misconduct by a party, Courts will often tell the clients to bear their own costs, or will make a costs award that is severely insufficient to the actual costs that were spent preparing for and attending Court.
Lost Wages, Travel Costs, Parking,
etc.
Courts will not include losses in income due to attendance at court or extra costs paid by either party in any costs award, unless they are true and approved disbursements.
Divided Success
Most commonly in family law cases, the outcomes are divided success. This is because Courts often focus on coming to a middle ground between parties. Their number one concern, when children are involved, is the best interest of the child(ren). Using this focus, a Court will often try to put an order in place that they may see the most fitting for the child, however, not in line with either the Applicant nor the Respondent’s proposal, therefore having no clear “successful party”.
Offers to Settle
Lawyers will often present opposing parties with offers to settle, or Calderbank offers (named after the 1975 case Calderbank v. Calderbank). These are offers that are provided to the other party prior to the Court date, with a reasonable time open for acceptance. If the result of the Court’s decision is as good as or better than the offer for the person who made the offer, the Court may choose to award enhanced costs to the successful party. This is done to encourage settlement prior to trial.
While I have tried to simplify costs and provide a brief overview, they are a very
complicated part of the process. If you have further questions on costs, or are
in need of any family law assistance or advice, please feel free to contact our
office at 403-981-0700 to schedule an appointment with one of our lawyers.
Article by Candace Wray
Disclaimer :
Although we are a law firm, this blog post does not constitute legal advice. It is for informational or entertainment purposes only and shouldn’t be seen as financial or legal advice of any kind. You should consult with a lawyer before relying on any of the information contained in this blog post. We can be contacted at (403) 981 0700 to set up a consultation with one of our lawyers who can review the specific circumstances of your matter and provide you with personalised legal advice.