In family law, where emotions run high, and stakes are deeply personal, the litigation journey can be draining and overwhelming. From divorce proceedings to support disputes, the legal process often becomes necessary for resolving disputes and reaching equitable solutions. However, one cannot overlook the significant financial toll that litigation in family law cases can exact on the involved parties.

The costs associated with family law litigation can extend far beyond legal fees and court filing expenses as a lesser-understood facet of litigation exists: cost awards. These awards can be crucial in shaping the financial landscape of family law disputes. Cost awards are generally intended to provide financial relief for the prevailing party. Moreover, they may serve as a deterrent to pursuing legal action or adding further strain on already burdened individuals. This blog post will unravel the complexities surrounding cost awards in family law litigation, shedding light on their purpose, calculation methods, and potential impacts. 

What are Costs in Litigation?

Costs (also known as a “cost award”) is a legal term for when a court orders a monetary award to the successful party in a proceeding, though they may also be awarded to punish a party’s poor conduct. The overarching intention of costs is to aid the prevailing party with financial assistance to compensate for their legal expenses. However, they may also serve as an incentive for parties involved in litigation to be realistic in their assumptions and act as a deterrent to discourage unnecessary or frivolous lawsuits. 

However, it is important to note that costs will not be awarded in every case, and a court may specify that the respective parties are responsible for their own costs.

Calculating Litigation Costs

Any party to a lawsuit in Alberta has the right to claim costs under Schedule “C” of the Alberta Rules of Court. However, a great deal of discretion is afforded to judges when determining the amount of a cost award. This is the result of the presumption that the judge who hears the trial is in the best position to determine which of the parties was more successful or, in the alternative, identify a party that has contributed unduly to delay or unreasonably rejected an offer to settle.  

It is important to distinguish the actual amount of legal fees and disbursements in a particular legal matter from the amount of costs awarded by a court, as a separate test is used to calculate a costs award. 

Court of Appeal of Alberta Addresses Costs Issue Following Spousal Support Dispute

In the recent decision of Kantor v Kantor, the Court of Appeal of Alberta was asked to determine a costs award concerning a spousal support claim. 

In this case, the husband and wife were involved in a dispute regarding spousal support entitlement. The husband was obliged to pay the wife $2,400 per month for spousal support under a January 2018 Order. An October 2018 consent order suspended these obligations but required him to restart his payments within two months of securing new employment and to disclose his new employment. However, he failed to disclose that he resumed work in June 2019 and also failed to restart his spousal support payments. 

Wife Seeks Costs as Consequence for Husband’s Misconduct or Unreasonable Delay

The wife applied to the Court for an order requiring the husband to restart his spousal support payments back to August 2019, which the chamber’s judge granted. The husband appealed this decision on technical grounds that the October 2018 consent order entitled him to a “review” of the January 2018 order. He further claimed that “the chambers judge applied the ‘wrong test’ to decide if his being out of work was a “material change in circumstances.” These arguments, however, were rejected, and the Court of Appeal held that the “underlying financial information did not warrant a change in the amount of spousal support.”

The wife then argued that she was entitled to costs due to the husband’s “litigation misconduct or conduct that unnecessarily lengthened the proceedings” on the basis that the husband: 

• failed to provide timely and full financial disclosure; 
• failed to recommence spousal support obligations under the October 2018 consent order;
• failed to pay the spousal support due under the chambers judge’s order;
• brought an “unmeritorious appeal” from the chambers judge’s decision;
• refused to accept offers to settle the costs of the appeal; and
• has approached litigation as a “war of attrition” and “choosing to unnecessarily litigate instead of complying with court orders along the way.”

Court of Appeal Clarifies Law on Costs

In this case, the Court of Appeal was specifically asked to address the question of costs from a prior decision, and although the parties agreed that the wife was the successful party in the matter, there was a dispute over the amount of costs she should receive. 

The wife argued that she should receive enhanced costs calculated at 75% of her legal expenses charged by her lawyer (totalling $17,025), amounting to $12,768. In the alternative, she sought 50% of the expense of the appeal, which was $8,512. She argued that the “normal” scale of costs is 50% of the fees and disbursements billed to the successful client, i.e. 50% of “solicitor and own client costs.” However, the court quickly rejected this. Referring to previous decisions, the Court clarified that “if a party claims costs as a proportion of the amounts billed by their lawyer, a more detailed analysis is needed to determine whether the sums claimed are “reasonable and proper costs” under rule 10.31 of the Alberta Rules of Court.

All-Inclusive Costs of $6,000 Awarded to Wife

Accordingly, the Court of Appeal noted that the question was related to costs from an appeal, which is different from a standard legal proceeding. Further, appeal costs must relate to the appeal itself. In this case, some of the alleged misconduct by the husband had already resulted in costs being awarded by the chambers judge. Although the Court of Appeal also ruled that the husband’s arguments ultimately failed and acknowledged that he refused to accept any previous settlement offer, the Court stopped short of categorizing his actions as frivolous or being done in bad faith. As such, the Court found that his arguments, although rejected, were not so unreasonable as to constitute misconduct or justify an enhanced level of costs awarded. 

As there was insufficient information provided in relation to the legal fees charged by the wife’s lawyer to decide the reasonableness of the amounts charged, the Court awarded an all-inclusive amount of $6,000 to be paid by the husband to the wife, which was similar to what had been previously ordered by the chambers judge. 

Final Thoughts on Costs in Family Law Matters

Although costs are usually paid to the successful party in litigation, they are not always appropriate at an increased amount. More importantly, there is little relation between the costs awarded and the amount spent on litigation.

In order for a claim for costs to succeed, especially at an elevated amount, it is necessary for the party seeking costs to satisfy the applicable tests and provide evidence in support of their position. Otherwise, their claim may not succeed. For these reasons, it is crucial to work with an experienced family lawyer who can help you build a strong case and advise you on issues relating to costs.

Contact the Calgary & Strathmore Divorce Lawyers at Getz Collins and Associates for Practical Family Law Solutions

At Getz Collins and Associates, we understand that every family law matter is unique, which is why our skilled family law lawyers provide each client with pragmatic and tailored family law services. We take a client-centred approach to any family law matter, regardless of the complexity of the circumstances. 

With offices conveniently located in Calgary and Strathmore, our firm proudly works with clients in communities across Alberta, including Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, and Hussar. To speak with one of our team members regarding your family law concerns, please reach out to us online or call 587-391-5600.