Can a Self-Represented Person Get Costs in an Alberta Family Case?

You are handling your own family case in the Court of King's Bench, and you may win an application or a trial. A common question is whether you can then get the other side to pay something toward your costs. The answer is that it depends, and it is a matter for the Court's judgment.

This article explains the general rule, the discretion that sits on top of it, what the Court weighs, and what to do if costs are not dealt with at the hearing. It is general information, not advice on your own case.

This article covers the law of Alberta.

The general rule and why it is not automatic

Under rule 10.29(1) of 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 "forthwith", even before the matter is finally decided.

That entitlement is subject to the Court's general discretion under rule 10.31, the assessment officer's discretion under rule 10.41, any specific rule or enactment on who pays costs, and rule 10.29(2). So costs in family cases are discretionary, not automatic.

The Rules of Court apply whether you are self-represented or have a lawyer.

Fee costs for a self-represented litigant

The key rule for you is rule 10.31(5). For a self-represented litigant, the Court may in appropriate circumstances order a costs payment equal to all or part of the fees specified in Schedule C. A self-represented person is therefore not automatically entitled to fee costs.

In practical terms, winning does not guarantee a payment, and the amount, if any, is for the Court to decide. A lawyer can tell you how this might apply to your situation.

Once the Court has considered the relevant factors, it may order one party to pay the other the reasonable and proper costs incurred, or any amount it considers appropriate. That can include a lump sum instead of or in addition to assessed costs.

What the Court looks at

When making a costs award, the Court may consider the following under rule 10.33(1):

• 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.
• 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 action, refusing to admit what should have been admitted, unnecessary or improper steps, irregularities in documents, breaching the rules or an order, and misconduct. It may also consider any settlement offer, whether or not it complies with Part 4, Division 5.

This applies to both sides. Your own conduct, including how you handle deadlines and orders, can affect whether you receive costs or have to pay them.

Timing, assessment and set-off

Unless the Court orders otherwise or the rules provide otherwise, a costs award may be made for an application or proceeding you had notice of once it is decided. It may also be made as part of a settlement where one party agrees to pay costs without the amount fixed. For trials and other matters in an action, it may be made 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 under rule 10.37. A party entitled to costs who wants or must have them assessed prepares a bill of costs in Form 44, itemizing fees, disbursements and other charges and signed by the preparer.

If the party ordered to pay is also owed costs, the Court may net the amounts by deduction or set-off. Unless the Court orders otherwise, reasonable and proper costs exclude the costs of dispute resolution processes under rules 4.16 and 4.18 (unless there was serious misconduct) and expert fees for investigations or for assisting at a trial or streamlined trial.

What to do next

• Keep your documents, deadlines and any settlement offers organized, since offers and conduct can matter.
• Ask the Court about costs at the end of the hearing, rather than leaving it unaddressed.
• If costs were not dealt with, find out how to request an assessment appointment and prepare a Form 44 bill of costs.
• Keep records of your disbursements.

Free help is available if you do not have a lawyer. Family court counsellors help self-represented people prepare for court, discuss issues and explore options. The Court and Justice Services Contact Centre at 1.855.738.4747 offers help with court forms and filing. Because costs are discretionary, consider confirming your position with a lawyer before relying on a costs award.

Frequently asked questions