November 18th, 2019
Few clients understand what costs in family court proceedings are. Fewer yet understand how these costs are awarded. Lawyers rarely completely understand the concepts either. That is not surprising, the law of costs in family matters is complex. There are few established standards upon which to rely. The certainty of outcome is uncertain. An award of costs is discretionary in nature. A judge has a great deal of leeway in deciding whether to order costs and in determining the level or amount costs. It is impossible to predict any given outcome.
So, what are costs?
I am often asked the question “what are Court costs”. I often struggle with the answer. There are so many ways in which “Court Costs” can be awarded. Firstly, they may be awarded by the Court for immediate payment. In this circumstance the Court will Order that costs are “payable immediately in any event of the cause.” You are probably asking what does “in any event of the cause mean?” It means that no matter what the eventual outcome in a case (at trial or otherwise) the amount ordered is payable. A Court may make this type of order for costs at any stage of proceedings. Usually, a costs order of this type is used by the Courts to demonstrate dissatisfaction with the behaviour of the penalized party. When costs are ordered immediately in any event of the cause,
There are some guidance and some limits on a judge’s discretion. What follows are some factors available for consideration in assessing costs:
The Alberta Rules of Court provide:
R.10.29(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action, subject to
(a) the Court’s general discretion under rule 10.31,
(b) the assessment officer’s discretion under rule 10.41,
(c) particular rules governing who is to pay costs in particular circumstances,
(d) an enactment governing who is to pay costs in particular circumstances.
Another useful provision of the Alberta Rules of Court is R. 10.33 which states:
R. 10.33(1) In making a costs award, the Court may consider all or any of the following:
(a) the result of the action and the degree of success of each party;
(b) the amount claimed and the amount recovered;
(c) the importance of the issues;
(d) the complexity of the action;
(e) The apportionment of liability;
(f) the conduct of a party that tended to shorten an action; and
(g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.
(2) In deciding whether to impose, deny or vary and amount in a costs award, the Court may consider all of any of the following:
(a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action;
(b) a party’s denial of or refusal to admit anything that should have been admitted;
(c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party;
(d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake;
(e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document;
(f) a contravention of or non-compliance with these rules or an order;
(g) whether a party has engaged in misconduct.
E.C.R. v. L.S., 2009 ABPC 385 (CanLII)
“ The jurisdiction of what was formerly known as the family division of The Provincial Court of Alberta to award costs in family matters derives from the passage of Section 28.1 [now 9.8] of the Provincial Court Act, effective January 22, 2001 through proclamation of the Justice Statutes Amendment Act, 2000 S.A. C.20. See T.M.M. v. P.C.  A.J. No. 586.
 Costs in family matters normally follow the event. No distinction is made between family matters and other civil litigation. The test is substantial success not absolute success. See Katrib v. Katrib, 2008 ABQB 162 (CanLII),
 A.J. No. 256 (Q.B.) at paragraph 9 citing Metz v. Weisgerber, 2004 ABCA 151 (CanLII), - A.J. No. 510 (C.A.).
 Costs in all matters are in the discretion of the trial Judge.”[ E.C.R. v. L.S., 2009 ABPC 385 (CanLII) Decision of the Honourable Judge E.R.R. Carruthers]
Shaw v Shaw, 2014 ABQB 165 (CanLII)
“ Costs in actions for matrimonial property division or support should not be treated any differently than costs in other litigation: Adams v. Adams, 2011 ABQB 812 (CanLII) at paragraph 6, citing with approval Yap v. Supramaniam, 2006 ABQB 37 (CanLII) at para. 13; D.B.C. v. R.M.W., 2005 ABQB 898 (CanLII), 393 A.R. 160 at para. 6; Cador [Chichak] v. Chichak, 1998 ABQB 881 (CanLII), 1998 ABQB 881 (CanLII); aff’d 2000 ABCA 10 (CanLII), where Wilson J. stated at paras. 9-10:
In my respectful opinion, costs in matrimonial matters should not as a general rule be treated any differently than costs in any other matter, subject to the exercise of discretion, which cannot be codified or patterned into rules. I should start with the principal [sic] that ordinarily costs should follow the event, if there has been success for one party, and not for the other, or if success has not been clearly divided.
Here the wife has succeeded. While there is some comfort in the judgment for the husband, it cannot be said that he succeeded, and he certainly would have been better off if he had taken the offer. The wife should have costs.”[ Shaw v Shaw, 2014 ABQB 165 (CanLII) Memorandum of Decision on Costs of the Honourable Madam Justice Frederica L. Schutz]