Costs and expenses
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Taking your case through the court process costs money. There are fees for hiring lawyers, process servers, agents, and/or interpreters, court fees, photocopying costs, and many other costs of conducting a lawsuit.
In the Supreme Court or the Court of Appeal, it's very common for the party who loses a lawsuit to be ordered to pay the costs of the party who wins. The successful party is "awarded" the costs.
Note that costs can't be awarded in Provincial Court.
Either a judge or master may make the order for awarding costs, which usually comes at the end of a trial or an appeal. It's also possible to be awarded costs after a hearing for an interim order.
When one person disobeys a court order or misuses the court processes in some way that requires the other person to pay for something that wasn't expected, the court uses the term expenses instead. Ordering one party to pay the expenses of the other party is different from an order to pay costs. Both the Supreme Court and the Provincial Court can make orders for expenses.
Here are some examples:
- The spouses hire a mediator to help with an agreement. An agreement is reached but is based on false information. The party who gives false information may be required to pay the other party the dispute resolution expenses.
- One parent doesn't show up for his or her share of parenting time. The other parent has to find daycare at the last minute. The parent who didn't show up may have to pay the other parent any costs for this daycare and wasted travel costs.
The laws about expenses are new — in effect since March 2013. For more information, see the following sections of the Family Law Act:
- Not disclosing information — sections 212(2), 213(2)(d)(i), and 214(4)
- Misuse of court process — section 221(2)(c)(i)
- Not following a conduct order made by the court — section 228(1)(c)(i)
- Enforcing an order — section 230(2)(b)(i)
There are two main types of costs: disbursements and legal fees.
Disbursements are the out-of-pocket expenses you pay to prepare your case, but they don't include lawyers' fees. They include things like:
- fees for making photocopies
- filing court documents
- hiring process servers, agents (if you used one to file documents), and interpreters
- getting expert reports
- many other costs
You'll also hear them referred to as proper disbursements, meaning the costs are legitimate or acceptable to the court. You need receipts for disbursements to claim them, and you'll be fully reimbursed. If you have a lawyer, he or she will have kept track of your disbursements.
Costs also cover the fees you pay your lawyer (legal fees). However, the amount of costs the court will order for lawyers' fees isn't based on what you actually pay your lawyer. It's based on something called a tariff. This is a set rate for different types of services. You can find the tariff in either the Supreme Court Family Rules or in the Court of Appeal Rules (Appendix B).
The amounts these tariffs allow are usually lower than the actual legal fees that were paid. It's unusual for a court to order that costs include legal fees that are higher than those in the tariff. (Those are known as "increased" or "special" costs.)
The general rule is that costs are paid by the person who "loses" to the person who "wins" the case. However, family cases are different from other types of cases — there might not always be a clear winner or loser. It's up to the judge or master to decide if one person should pay costs to the other.
In some situations, you might not get an order for costs. For example:
- The judge/master might decide that ordering either party to pay costs would upset the balance the court is trying to create when it awards support or divides family property.
- The judge/master might decide that neither party has really had "substantial" success at the trial. For example, the husband might succeed in having the family property divided the way he wants, but the wife might succeed in getting spousal support against his wishes. Some family law cases have said that a party should win at least 75 percent of the issues for costs to be ordered. If no one does, success is said to be "divided" and no one gets their costs paid.
You're definitely entitled to recover your proper disbursements. You didn't pay legal fees if you represented yourself, but the Court of Appeal has decided that you can get costs for the court work you did. See the 1995 case of Skidmore v. Blackmore for more information.
You don't have to ask, but it's a good idea to do so anyway. The Supreme Court Family Rules (Rule 16-1(7)) say that the cost of a family law case must be awarded to the successful party unless the court orders otherwise. If you don't ask for costs, you can still get them later. All the same, it's a good idea to ask for costs if you win.
Costs awarded at an interim hearing
Sometimes the court awards costs when it makes an interim order. The court uses different words to describe how and when these costs should be paid:
- "Costs in the cause" — Even if you won at the interim hearing, usually you can only claim costs if you win the whole case.
- "In any event of the cause" — If you lose the lawsuit but win at an interim hearing, you can deduct your interim hearing costs from any final costs the other party tries to collect from you after the trial.
- "Forthwith after taxation" — The taxation hearing (see step 3 below) can happen before the final trial, so you can try to collect your costs before the trial starts.
Costs awarded at the end of the case
If you get an order for costs at the end of a trial or appeal, you usually have to go to a separate taxation hearing (see step 3 below) where you prove your expenses. The taxation hearing is run by a court registrar, who issues a judgment you can use to collect your costs.
Sometimes, orders for costs at the end of a trial are given as lump sums, without the need for a taxation hearing. This normally happens when a matter is simple and may not go any further in court. To get lump sum costs, you usually need to prepare a simple summary of your costs in advance to give to the judge or master in case the decision is made in your favour.
Your Bill of Costs must follow the tariff of costs for either the Supreme Court or the Court of Appeal (scroll down to Appendix B, if necessary), depending on where your case was heard. The exception is if the judge said you should get more costs than the tariff sets out. You're only entitled to include costs for hearings you won. The amount allowed for each type of activity is listed in the tables. For some items, the amount you'll be awarded depends on how difficult the judge/master believes your case was.
Your Bill of Costs also includes all proper disbursements. Usually, these include fees for photocopies, court filing, process servers, agents (if you used one to file documents), interpreters, and many other costs.
When you've prepared your Bill of Costs, attach invoices and receipts for the disbursements to it and send the package to the other party. That person might agree and simply sign the bill, or might negotiate with you for a smaller bill. If you get the other party's signature on the bill, you can file it with the court and get a Certificate of Costs, which is a judgment of the court.
If the other party won't agree to your Bill of Costs, you must ask for a taxation hearing. Contact the court registrar's office to set a date. You must do the following before the hearing:
- Fill out and file a form called an Appointment (Form F55 in the Supreme Court; Form 29 in the Court of Appeal). Also file your Bill of Costs and any affidavits you have in support of your claim for costs.
- Have your Bill of Costs signed by the registrar.
- Serve the Appointment form, with the Bill of Costs and any affidavits attached, on the other party at least five days before the hearing. (See our guide How to serve Supreme Court documents if you need help.)
When you go to the taxation hearing, bring invoices or receipts for the disbursements. If you're claiming photocopying costs, it helps to have an exact count of how many copies you made. You also need to itemize all court attendance dates and other tariff fee items. If you're claiming the costs of examinations for discovery (a pre-trial process where you're questioned by the other lawyer outside of court), you may need to produce transcripts to show the number of days discovery was held.
At the end of the taxation hearing, the registrar will decide the exact amount of your costs. Bring a blank Certificate of Costs with you (Form F72 in the Supreme Court Family Rules or Form 31 in the Court of Appeal).
Once the court enters and stamps the certificate, it's called a judgment. If the other party doesn't pay you, you have the legal right to use several court processes to try to collect the money (known as "execution" processes). This includes things like hiring a sheriff to seize property, or getting a court order telling the person's bank or employers to pay the person's money to the court for you. For more information on how to collect a judgment, you can speak to a lawyer or read this Dial-A-Law script.
Tip: Costs can be complicated. If you still have questions, speak to a lawyer. To find one, see Who can help?
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