Costs

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What are costs?

In the Supreme Court or the Court of Appeal, the party that loses a lawsuit might be ordered to pay the expenses (or "costs") of the successful party. Either a master or a judge may make the order, which usually comes at the end of a trial or appeal. (It's also possible to be awarded costs after a non-final hearing.)

Costs can include legal fees and disbursements, which are the expenses needed to take the lawsuit through the court process (such as court fees, photocopies, process server fees, agents, interpreters, etc.).

Do costs cover all court expenses?

Costs usually cover the full amount of proper disbursements. However, the amount paid for legal fees is usually based on something called a tariff — or a predetermined rate — which you can find in either the Supreme Court Family Rules or in the Court of Appeal Rules. The amounts these tariffs allow are often much lower than the actual legal fees paid. The court can order that costs include legal fees that are higher than those in the tariff (known as "increased" or "special" costs), but this is unusual.

Are family law matters different when it comes to costs?

Family law cases aren't supposed to be different when it comes to costs. However, the judge/master always has the discretion to award them or to decide not to award them. There are some situations in which you might not get an order for costs; for example:

• The judge/master could decide that ordering either party to pay costs would upset the balance the court is trying to create when it awards support or divides property.
• The judge/master could 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 might succeed in getting spousal support against his wishes. Some cases have said that a party in a family law case should win at least 75 percent of the issues for costs to be ordered. If no one does, success is said to be "divided" and no one gets their costs paid.

Am I entitled to costs if I represented myself?

You're definitely entitled to recover your proper disbursements. But if you represented yourself, you did not pay legal fees. 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.

If I win at a non-final hearing or trial, do I need to ask the judge to order costs?

You don't have to ask, but it's a good idea to do so anyway. The Supreme Court Family Rules (16-1(7)) say that the cost of a family law case must be awarded to the successful party unless the court orders otherwise. If you don't ask for costs, you can still get them later. All the same, it's a good idea to ask for costs if you win.

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If costs are ordered, when do I get them?

If you get an order for costs at the end of a trial or appeal, you usually have to go to a separate "taxation" hearing where you prove your expenses. It's run by a court registrar, who issues a judgement you can use to collect your costs.

Sometimes, orders for costs at the end of a trial are given as lump sums, without the need for a taxation hearing. This normally happens when a matter is simple and may not go any further in court. To get lump sum costs, you usually need to prepare a simple summary of your costs in advance to give to the judge or master in case the decision is made in your favour.

Costs at non-final hearings are usually ordered to be "in the cause." This means that even if you won at the non-final hearing, you'll only be able to claim costs if you win the whole lawsuit. However, sometimes the court will make an order for costs "in any event of the cause." This means that if you lose the lawsuit, you can deduct your non-final hearing costs from any final costs the other party tries to collect from you after the trial.

Costs at non-final hearings can also be ordered to be paid "forthwith after taxation." This means that the taxation hearing can happen before the final trial, so you can try to collect your costs before the trial starts.

 

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

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1. Prepare a Bill of Costs

If you win at a trial or appeal, you'll need to prepare a formal Bill of Costs (Form F71 in the Supreme Court and Form 30 in the Court of Appeal).

Your Bill of Costs must follow the tariff of costs for either the Supreme Court or the Court of Appeal (depending on where your case was heard), unless the judge said you should get more costs than the tariff sets out. You're only entitled to include costs for hearings you won. The amount allowed for each type of activity is listed in the tables. For some items, the amount you'll be awarded depends on how difficult the judge/master believes your case was.

Your Bill of Costs can include all proper disbursements. Usually, these include fees for photocopies, court filing, process servers, agents (if you used one 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've prepared your Bill of Costs, attach invoices and receipts for the disbursements to it and send the package to the other party. That person might agree and simply sign the bill, or might negotiate with you for a smaller bill. If you get the other party's signature on the bill, you can file it with the court and get a Certificate of Costs, which is a judgement of the court.

3. If they refuse, ask for a taxation hearing

If the other party won't agree to your Bill of Costs, you must ask for a taxation hearing. Contact the court registrar's office to set a date. You must do the following:

• Fill out and file a form called an Appointment (Form F55 in the Supreme Court; Form 29 in the Court of Appeal). Also file your Bill of Costs and any affidavits you have in support of your claim for costs.
• Have your Bill of Costs signed by the registrar.
• Serve the Appointment form, the Bill of Costs, and any affidavits on the other party at least five days before the hearing. (See our guide How to serve Supreme Court documents if you need help.)

When you go to the taxation hearing, bring invoices or receipts for the disbursements. If you're claiming photocopying costs, it helps to have an exact count of how many copies you made. You also need to itemize all court attendance dates and other tariff fee items. If you're claiming examinations for discovery, you may need to produce transcripts to show the number of days on which discovery was held.

4. Get a Certificate of Costs

At the end of the taxation hearing, the registrar will decide the exact amount of your costs. Bring a blank Certificate of Costs with you (Form F72 in the Supreme Court Family Rules or Form 31 in the Court of Appeal).

5. Collect from the other party

Once the court enters and stamps the certificate, it's a judgement. If the other party doesn't pay you, you have the legal right to use several court processes to try to collect the money (known as "execution" processes). This includes things like hiring a sheriff to seize property, or getting a court order telling the person's bank or employers to pay the person's money to the court for you. For more information on how to collect a judgement, you can speak to a lawyer or read this Dial-A-Law script.

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Costs can be complicated. If you still have questions, speak to a lawyer. To find one, see Who can help.

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