Understanding Family Court Costs in Alberta: Mitigating Expenses

Contentious divorces can be incredibly expensive and prolonged. While it is recommended that parties try to resolve their disputes outside of court, sometimes court is necessary when a resolution cannot be reached. When a family matter ends up in court, a key question is costs: the ability of one party to recover some of the legal fees they spent.

In Alberta, the rules for awarding costs are outlined in the Alberta Rules of Court. While the general rule is that a successful party can recover costs, a court has broad discretion and might not follow the guidelines if they are inappropriate for the situation.

Substantial Success

The primary condition for a costs award is that a party is substantially successful in court. Winning a few minor issues does not count unless those issues were the most significant in the case. For example, a judge might decide that both parties should bear their own costs if they made unproven allegations or had mixed results. Even if a party is substantially successful, a judge can still decide that awarding costs is unfair, especially if the parties could have resolved the dispute outside of court.

Proportionality

Costs must also be proportional to the matter heard in court, meaning they have to be reasonable relative to the amounts and issues at stake. If a party spends a large amount on legal fees, they will not be fully reimbursed unless those costs are proportional and justified. The amount of costs awarded is largely constrained by the Alberta Rules of Court.

Schedule C Costs

The Alberta Rules of Court includes a section referred to as Schedule C, which sets out a cost range for legal work. Again, while a court has broad discretion and is not bound by this schedule, it is often used as a guideline. Schedule C sets out costs based on the monetary value that the parties disagree over. In cases with no monetary amount, such as injunctions, costs are typically determined using column 1, the lowest amount.

Litigation Misconduct

Beyond Schedule C, a court can award other costs based on the parties' behaviour. Enhanced or punitive costs can be awarded for litigation misconduct or if a party unreasonably rejects a settlement offer.

Courts are paying close attention to how parties behave during or prior to litigation Repeatedly failing to comply with court orders, submitting disorganized or excessive materials, disregarding procedural rules, or making unfounded accusations can all result in further costs being awarded.

The court is aware that these behaviours impose unnecessary burdens on the court and the opposing party, driving up legal expenses. It may impose further costs to discourage this behaviour or compensate the other party for the unnecessary expenses they incurred.

Calderbank Offers

Finally, there are Calderbank offers. These are "without prejudice save as to costs" settlement offers that can be used to influence a judge's cost decision. This means that the offer's terms cannot be used to influence the court’s decision. However, if the party who proposed the offer is substantially successful further costs may be awarded. In short, if a party unreasonably rejects a reasonable offer and then loses at trial, they may face additional costs.

A Calderbank offer is only effective if it's clear, specific, and reasonably comparable to the final trial outcome. Offers that are vague or bundle multiple, unrelated matters carry less weight.

---

Overall, costs are a complex issue. However, they may mitigate the expenses of going to court. At Stokes Law, we are prepared to help you resolve your issues, in or out of court. If court is the only solution, we are prepared to support you through the entire process.

BOOK A CONSULTATION