Can a Self-Represented Party Get Costs in Alberta Family Court?

You handled your own Alberta family court case, and you came out ahead on an application or at trial. Now you are wondering whether the other side has to pay you back for what the case cost you.

The answer is a qualified yes in some cases and a no in others. This article walks through the basic costs rule, the special rule for self-represented people, what the Court looks at, and what to do if no costs were decided on the day.

This article covers the law of Alberta.

The basic rule: success usually leads to costs, but not automatically

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, 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 under r 10.31, the assessment officer's discretion under r 10.41, any specific rule or enactment about who pays costs, and r 10.29(2). In family cases, costs are therefore discretionary, not automatic.

The Alberta Rules of Court apply whether you are self-represented or have a lawyer, and the Court of King's Bench handles divorce, property division, support and parenting. Some Family Law Act matters can also be heard in the Court of Justice, so how this applies depends on which court your case is in, and it is worth confirming with a lawyer.

What the rules say about self-represented people

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 not automatically entitled to fee costs.

In plain words, you cannot assume you will be paid for your time the way a lawyer's fees might be covered. Whether you receive anything, and how much, depends on the circumstances and the judge's decision. The amounts in Schedule C are not set out here, so check the current Schedule or ask a lawyer how it might apply to you.

What the Court considers when deciding costs

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

• 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 the question of 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, misconduct, and any settlement offer, whether or not it follows the formal offer rules.

This cuts both ways. Good conduct and reasonable settlement offers can help you, while missed deadlines or unnecessary steps on your side could reduce or reverse an award.

What is usually left out, and how amounts can be set

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.

The Court may order the reasonable and proper costs incurred, or any amount it considers appropriate, which can include a lump sum instead of or in addition to assessed costs. An award can be all or part of the costs, a multiple, proportion or fraction of a Schedule C amount, costs on a particular issue or application, or a percentage of assessed costs.

If you also owe the other side costs, the Court may net the amounts by deduction or set-off.

When costs are decided, and what to do next

Unless the Court orders otherwise, a costs award may be made for an application you had notice of once it is decided, as part of a settlement where one party agrees to pay costs without the amount fixed, or for trials and other matters after judgment or a final order is entered. If the application was heard without notice, the Court may decide costs immediately or wait until every party has been told the date, time and place for that decision.

If no costs award or assessment order was made when the matter was decided, either party may ask an assessment officer for an assessment appointment date under r 10.37. A party who wants or must have costs assessed prepares a bill of costs in Form 44, itemizing fees, disbursements and other charges and signed by the preparer.

• Check your order or reasons to see whether costs were addressed.
• Keep records of filing fees, copying and other expenses you paid.
• Gather any settlement offers you made or received.
• If costs were not decided, ask for an assessment appointment date.
• Prepare a Form 44 bill of costs if an assessment is needed.
• Call for free help: family court counsellors are for people without a lawyer, and the Court and Justice Services Contact Centre at 1.855.738.4747 helps with court forms and filing.

Frequently asked questions