Costs

Note: Mouse over any of the terms in green type to see a definition.

What are costs?

In the Supreme Court or the Court of Appeal, "costs" refers to a court order that says that the losing party in a lawsuit must pay the legal expenses of the successful party. Costs may be awarded by either a master or a judge. Orders for costs can be made after an interim hearing, but are usually made at the end of a trial or appeal.

Costs can include a party's "disbursements" (any proper expense needed to take the lawsuit through court) and legal fees.

Do costs cover all court expenses?

Costs usually cover the full amount of proper disbursements. However, the legal fees that are calculated for costs are usually based on a tariff set out in the court rules. The amounts provided for by this tariff are often significantly less than the actual legal fees paid by the successful party. The court can order that costs include legal fees that are higher than those set out in the tariff (called increased or special costs), but this is unusual.

Am I entitled to costs if I represented myself?

You are definitely entitled to recover your proper disbursements. But if you represented yourself, you did not have the expense of legal fees, and it would seem that you might not get costs for the work you did yourself. However, the Court of Appeal has decided that you can get costs for the court work you did. See the 1995 case of Skidmore v. Blackmore for more information about this.

Are family law matters different when it comes to costs?

Family law cases are not supposed to be different from any other type of lawsuit when it comes to costs. However, the judge always has the discretion whether or not to award costs. Some family law cases can provide reasons not to order costs that would not happen in other lawsuits. For example:

• The judge may decide that it will upset the balance of an award of support or division of property if costs are ordered, as the losing party will not have the level of financial independence the court is trying to create if they pay costs.
• The judge may decide that neither party has really had substantial success at the trial. For example, the husband might succeed in having the family property divided the way he wants, but the wife succeeds in getting spousal support against his wishes. Some cases have ruled that a family law party should win at least 75 percent of the issues for costs to be ordered. If they do not, success is said by the court to be "divided" and no costs are allowed.

If I win at an interim hearing or trial, do I need to ask the judge to order costs?

Not necessarily. The Supreme Court Rules (57(9)) set out that "costs follow the event." This means that if you win your interim hearing or trial, keeping silent about costs does not mean that you do not get them. However, it is a good idea to ask the judge for costs if you win.

If costs are ordered, when do I get them?

If you ask for and get an order for costs at the end of your trial or appeal, you will most likely have to prove your expenses at a separate "taxation" hearing with a court registrar before you can get a money judgment on which you can collect your costs.

Costs at interim hearings are usually ordered to be "in the cause." This means that even if you won at the interim hearing, you will only be able to claim these costs if you win the whole lawsuit.

Sometimes the court will make an order that the successful party get costs in an interim hearing "in any event of the cause." This means that, even if you lose the lawsuit after the trial, you can deduct the costs of the interim hearing from the other party's costs against you after the trial.

Costs at interim hearings can also be ordered to be paid "forthwith after taxation." This means that you can go to a separate taxation hearing to have the actual amount of the interim costs decided by the court, then ask the other party to pay them before the final trial happens.

Orders for costs are sometimes also given as lump sums, not requiring any further proof for the costs to be collectable. This occurs most often when a matter is simple, and may not go any further in court. To get lump sum costs, you usually need to have a simple summary of your costs available to give the court after it has made a decision in your favour.

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If a judge orders that I get costs, what do I do next?

1. Prepare a Bill of Costs

If you win at a trial or appeal, you will need to prepare a formal Bill of Costs. To prepare this form, use Form 67 in the Supreme Court and Form 30 in the Court of Appeal.

Your Bill of Costs must follow the tariff of costs found in the Supreme Court Rules (scroll down to Tariff) or the tariff of costs found in the Court of Appeal Rules (scroll down to Appendix B), unless the judge said you should get more costs than the tariff sets out. You are only entitled to include hearings you won. You can include time spent in preparation for trial and examinations for discovery, the time spent at trial, and other tasks required for the lawsuit. The amount allowed by the tariff for each item depends on the scale of costs ordered by the judge (A to C, with B being the most common for contested lawsuits) and is determined by the "units" allowed for each task. Sometimes the number of units is on a sliding scale depending on the difficulty of the particular task. You will have to decide how many units to ask for in your Bill of Costs. If the judge doesn't specify the scale of costs, scale B is used.

Your Bill of Costs will include all proper disbursements. Usually, these include photocopies, court fees, process servers, agent's fees (if used to file documents), interpreters, and the many other costs of conducting a lawsuit.

2. See if the other party will agree to your Bill of Costs

When you have prepared your Bill of Costs, attach the various invoices for disbursements to it, and send it to the other party. The other party may agree, and simply sign the bill to indicate that. Or, he or she may negotiate with you for a smaller bill. Once you have the other party's signature on the bill, you can file it with the court and get a Certificate of Costs, which is a money judgment of the court.

3. Attend a taxation hearing

If the other party will not agree to your Bill of Costs, you must set an appointment for a taxation hearing. Contact the court registrar's office to set this appointment. You must fill out a form called an Appointment (Form 24, Supreme Court; Form 29, Court of Appeal), have it signed by the registrar, and deliver it to the other party.

At the taxation hearing, you need to bring all your invoices for disbursements claimed on your bill. If you are claiming photocopying costs, it helps to have kept an exact count of how many copies you are claiming. You also need to itemize all court attendances or other tariff fee items you are claiming. For examinations for discovery, you may need to produce transcripts to show the number of days on which the discoveries occurred.

4. Get a Certificate of Costs

At the end of the taxation hearing, the registrar deciding the matter will determine the exact amount of your costs. Bring a blank Certificate of Costs with you. See Form 68 (Supreme Court) or Form 31 (Court of Appeal) for the required form to present for completion and signing by the registrar.

5. Collect from the other party

Once entered and stamped by the court, this certificate is a money judgment. If the other party does not pay you, it entitles you to enforce your judgment using other court processes, (legally called "execution" processes). This means you could hire a sheriff to seize property, get court orders that banks and employers must pay into court money they hold for the other party, etc. Execution is a large area of law, and is not covered in this fact sheet.

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Costs can be complicated. If you still have questions, speak to a lawyer. See Who can help for more information on how to find a lawyer.

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