Can a Judge Order My Ex to Pay My Legal Costs in Alberta?

Family court can be expensive, and many people ask whether the other side can be made to cover some of what they spend. The short answer is that it is possible, but it is never guaranteed.

This article explains the starting rule in Alberta, what a judge can order, what affects the result, and a few special situations. It is general information, not advice on your case.

This article covers the law of Alberta.

The starting rule: the winner is entitled to costs

Under the Alberta Rules of Court, a successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party. The unsuccessful party must pay it promptly, even before the matter is finally decided.

That entitlement is not absolute. It is subject to the Court's general discretion, the discretion of the assessment officer, any specific rule or law about who pays costs, and the rule on without-notice matters. In practice, costs in family cases are discretionary, not automatic.

What a judge can order

After considering the listed factors, the Court may order one party to pay the other the reasonable and proper costs incurred, or any amount the Court considers appropriate. That can include an indemnity for the party's lawyer's charges, or a lump sum instead of or in addition to assessed costs.

An award of reasonable and proper costs does not have to cover everything. It can be all or part of the costs, with or without reference to the Schedule C tariff. It can also be a multiple, proportion or fraction of a Schedule C amount, costs on one issue or application, or a percentage of assessed costs.

So the question of how much is usually awarded does not have a single answer. It depends on the result, the judge's view of the case and how the award is structured. A lawyer can tell you what range is realistic for your situation.

What affects whether you get costs, and how much

When making a costs award, the Court may consider the following:

• The result and each party's degree of success.
• The amount claimed and the amount recovered.
• The importance of the issues and the complexity of the action.
• Conduct that shortened or lengthened the action.
• Any other matter related to costs.

In deciding whether to impose, deny or vary an award, the Court may also look at unnecessary delay, refusing to admit what should have been admitted, unnecessary or improper steps, breaching the rules or an order, misconduct, and any settlement offer.

If you are ordered to pay costs and are also owed costs, the Court may net the amounts by deduction or set-off.

Special situations to know about

• Without-notice matters: if a matter is heard without notice to a party, such as an urgent application, the Court may award costs immediately or put off that decision until every party has been told the date, time and place for it.
• Self-represented people: the Court may, in appropriate circumstances, order a payment equal to all or part of the fees in Schedule C, so a self-represented person is not automatically entitled to fee costs.
• Excluded items: unless the Court orders otherwise, reasonable and proper costs leave out expert fees for investigations or for assisting at a trial or streamlined trial, and certain dispute resolution costs unless there was serious misconduct.
• Lawyer misconduct: if a party's lawyer engages in serious misconduct, the Court may order the lawyer, rather than the client, to pay costs.

What to do next

• Keep a clear record of your legal bills and the steps taken in your case.
• Ask the judge or your lawyer about costs at the time the matter is decided, since a costs award is usually dealt with then.
• If no costs award or assessment order was made, either party may ask an assessment officer for an assessment appointment date.
• If you need costs assessed, prepare a bill of costs in Form 44 itemizing fees, disbursements and other charges.
• Speak with a lawyer about your costs risk before you start or respond to an application.

Frequently asked questions