Going to court costs money. Some of the things that have to be paid for are:
- lawyers, process servers, agents, and/or interpreters,
- photocopying, and
- court fees.
In Provincial Court, costs can't be awarded to either person. The law calls them a party. This means that the person who loses can't be ordered to pay the costs of the person who wins.
In the Supreme Court or the Court of Appeal, often the person who loses is ordered to pay the costs of the person who wins. But this doesn't always happen. (See Do courts ever decide not to award costs?)
Either a judge or a master can make an order to award costs. This usually happens at the end of a trial or an appeal. It can also happen after a hearing for an interim order.
How are costs different from expenses and penalties?
If one person disobeys a court order or misuses the court processes in certain ways, sometimes the other person ends up having to pay for something they didn't expect. When that happens, the court talks about expenses instead of costs. Ordering one person to pay the expenses of the other is different from ordering them to pay costs.
Both the Supreme Court and the Provincial Court can make orders for expenses and penalties.
Here are some examples of expenses:
- The people involved in a case hire a mediator to help them come to an agreement. If the agreement is based on false information, the person who gave the false information might have to pay the other person's share of the mediation bill.
- One parent doesn't show up for their parenting time. The other parent has to find daycare at the last minute. The parent who didn't show up might have to give the other parent money to pay for the daycare and extra travel costs.
Sometimes the court will order a penalty (fine) against a person who isn't following court orders.
Here's an example of a penalty (fine):
- A person ignores court orders to give certain financial information over and over again. The court might order the person pay a fine of up to $5,000.
See the following sections of the Family Law Act for more information about this:
- 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)
What types of costs are there?
There are two main types of costs: disbursements and legal fees.
Disbursements are the money you spend to prepare your case. They include things like:
- fees for making photocopies,
- fees for filing court documents,
- hiring process servers, agents (if you used one to file documents), and interpreters, and
- fees for getting expert reports.
You'll also hear them called proper disbursements. This means the court agrees that they're acceptable or reasonable costs. Keep all your receipts for your disbursements. You'll need the receipts to claim back what you've spent. If you have a lawyer, they'll keep track of your disbursements.
Disbursements don't include lawyers' fees.
Costs can also include the fees you pay your lawyer (legal fees).
But if you're awarded costs for your lawyer's fees, the amount won't be based on what you've actually paid 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 the Supreme Court Family Rules and in the Court of Appeal Rules (Appendix B). The rules are quite complicated, because lots of different things affect the final amount.
Tariffs are usually less than the actual amount you paid your lawyer. It's unusual for a court to order payment of costs for legal fees that are higher than the amounts in the tariff. (Those are known as increased or special costs.)
Do courts ever decide not to award costs?
The general rule is that the person who "loses" pays the costs of the person who "wins" the case. But in family law cases, there isn't always a clear winner or loser. The judge or master has to decide if one person should pay costs to the other.
Here are some examples of when you might not get an order for costs:
- In family law, the court usually tries to be balanced (fair) when it awards support or divides family property. The judge or master might decide that ordering one person to pay costs would upset that balance.
- In family law, sometimes there isn't one "winner" or "loser." For example, the family property might be divided up the way the husband wanted, but he has to pay spousal support for his wife even though he didn't want to. Some family law cases have said that one person should win at least 75 percent of the issues for costs to be ordered. If this doesn't happen, the court says that success is "divided" and no one gets their costs paid.
Can you claim costs if you represent yourself?
You didn't pay legal fees if you represented yourself but you're definitely entitled to get your proper disbursements.
If you win at an interim hearing or trial, do you need to ask the judge to order costs?
You don't need to ask, but it's a good idea to ask anyway. The Supreme Court Family Rules (Rule 16-1(7)) say that the person who wins in a family law case must be awarded costs unless the court orders otherwise.
If you don't ask for costs right at the end of the hearing or trial, you can still get them later. But it's a good idea to ask at the hearing or trial.
If costs are ordered, when do you get them?
This depends on when the costs were ordered.
Sometimes the court awards costs when it makes an interim order. It uses different words to describe these costs and how they 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 final case.
- In any event of the cause: If you lose the final case but win at an interim hearing, you can deduct the costs of the interim hearing from the amount the other person tries to collect from you after the trial.
- Forthwith after taxation: You might need a taxation hearing before the final trial if the other person doesn't agree to the amount of your costs, so you can try to collect your costs before the trial starts. A taxation hearing is a hearing where the court decides if your bill of costs is accurate and reasonable. (Sometimes it's called an assessment.)
If you get an order for costs at the end of a trial or appeal, you usually have to go to a taxation hearing to show proof of what you've spent on going to court. The taxation hearing is run by a court registrar, who issues a judgment you can use to collect your costs.
Sometimes, costs ordered at the end of a trial are lump sums and you don't need a taxation hearing. This normally happens when a matter is simple and there probably won't be an appeal.
You usually need to prepare a simple summary of your costs that you can give to the judge or master if the other person is ordered to pay your costs.
What do you do if a judge orders that you get costs?
If a judge orders that you get costs:
- prepare a Bill of Costs, and
- ask if the other person agrees to it.
If the other person agrees:
- get a Certificate of Costs, and
- collect the money from them.
If the other person doesn't agree:
- get a taxation hearing,
- get a Certificate of Costs, and
- collect the money from them.
How do you prepare a Bill of Costs?
If you win at a trial or appeal, you'll need to prepare a formal Bill of Costs (Form F71 in the Supreme Court and Form 30 in the Court of Appeal).
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. Sometimes the judge will say that you should get more costs than the tariff says, but that's unusual.
You can only 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 or master believes your case was.
Your Bill of Costs also includes all proper disbursements. Usually, these include money you spent on photocopying, 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 your invoices and receipts for the disbursements to it, and
- send it all to the other person.
If the other person agrees with your Bill of Costs, ask them to sign it. Then you can file it with the court and get a Certificate of Costs, which is a judgment of the court.
If the other person doesn't agree with your Bill of Costs, you'll need to get a taxation hearing.
What happens at a taxation hearing?
To get a taxation hearing, contact the court registrar's office to set a date. Contact the same court that ordered you should be paid costs.
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).
- File your Bill of Costs and any affidavits you have that support your claim for costs.
- Ask the registrar to sign your Bill of Costs.
- Serve the Appointment form, with the Bill of Costs and any affidavits attached, on the other person at least five days before the hearing. (See Serve Supreme Court documents if you need help with this.)
When you go to the taxation hearing, bring your invoices or receipts for the disbursements. If you're claiming photocopying costs, it helps if you know how many copies you made of everything.
You also need to list all your 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 person's lawyer outside of court), you might need to show evidence of how many days discovery lasted.
How do you get a Certificate of Costs?
At the end of the taxation hearing, the registrar will decide the exact amount of your costs.
Bring a blank Certificate of Costs (Form F72) in the Supreme Court Family Rules or Form 31 in the Court of Appeal) with you.
When can you collect from the other person?
Once the court enters and stamps the certificate, it's called a judgment. If the other person doesn't pay you, the law says you can use certain court processes to try to collect the money (known as execution processes). For example, you can hire a sheriff to seize property or get 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, speak to a lawyer or read this Dial-A-Law script.
Costs can be complicated. If you still have questions, speak to a lawyer. See Tips about getting legal help for where to find one.
Taking several slow, deep breaths can make you feel less tense.