Can Your Ex Be Ordered to Pay Your Family Court Costs in Alberta?

When a family dispute goes to court, legal fees can add up quickly. It is natural to ask whether your ex can be made to pay some of what you spent, especially if you think they dragged things out.

The short answer is that it can happen, but it is never guaranteed. This article explains the basic Alberta rules on costs, what a judge weighs, and what you can do to prepare.

This article covers the law of Alberta.

The starting point: costs follow success, but with discretion

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

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

These rules apply whether you are self-represented or have a lawyer.

What a judge looks at

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

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

In deciding whether to impose, deny or vary a costs award, the Court may also consider unnecessary conduct that delayed or lengthened the case, refusing to admit what should have been admitted, unnecessary or improper steps, irregularities in documents, breaking the rules or an order, misconduct, and any settlement offer.

This is why settlement offers can matter. It is one thing a judge may weigh later, even if it was not formally made under the settlement offer rules.

What a costs award can look like

After considering those factors, the Court may order one party to pay the other the reasonable and proper costs incurred, or any amount it 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 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 a particular issue or application, or a percentage of assessed costs.

If the person ordered to pay is also owed costs, the Court may net the two amounts by deduction or set-off. So if each of you won on different issues, the amounts may cancel out in whole or in part.

Special situations to know about

When costs are decided and how they are assessed

Unless the Court orders otherwise, a costs award for an application you had notice of may be made once it is decided. A settlement can also provide that one party pays costs with the amount left unfixed, and for trials, costs may be addressed after judgment or a final order is entered.

If no costs award or assessment order is made when the matter is decided, either party may ask an assessment officer for an assessment appointment date. A party entitled to costs who wants them assessed prepares a bill of costs in Form 44, itemizing fees, disbursements and other charges, and the Court can also order an assessment.

What to do next

• Keep every invoice, receipt and record of what you paid, as a bill of costs itemizes fees and disbursements.
• Keep copies of settlement offers you make and receive, and the dates.
• Raise costs at the end of each application or hearing, so it is not forgotten.
• Remember that the Family Focused Protocol limits further interim applications after the Mandatory Intake Triage to exceptional circumstances, so timing matters for any interim request.
• Ask a lawyer how these rules apply to your facts before you rely on a costs award to fund your case.

Frequently asked questions