Costs in Family Law

“If I win my case, does my ex have to pay my legal fees?”  The answer to this question is not clear cut.

In all civil litigation, including family litigation, success is rewarded by an order for costs. However, even if you win your case, you will seldom get back everything you paid your lawyer. This blog post will explain how costs are assessed in family law.

Mr. Justice Bernard helpfully summarized it in S.A.M. v J.A.M., 2017 BCSC 2348, where he noted, “the governing legal principles are not in contention” and stated them as follows:

1. The costs of a family law case must be awarded to the successful party, unless the court otherwise orders (Rule 16-1(7)) of the Supreme Court Family Rules [Rules];
2. The “successful party” is the party who has achieved substantial success at the trial/hearing);
3. The court’s discretion to “order otherwise” must be exercised judicially, bearing in mind a non-exhaustive list of factors that includes hardship, earning capacity, the purpose of the particular award, the conduct of the parties in relation to the litigation, and the importance of not upsetting the balance achieved by the court in relation to the substantive issues;
4. The party who asks the court to “order otherwise” bears the onus to persuade the court why it should do so;
5. Financial hardship, without more, is not a sufficient basis for the court to exercise its discretion to depart from the usual rule that successful parties are entitled to their costs;
6. Where an offer to settle a family case has been made, the court may award double costs for all or some of the steps taken after the date of delivery or service of the offer (Rule 11-1(5) of the Rules);
7. As a general rule, an award of double costs should be made against a party who did not accept an offer to settle that should, in all circumstances, have been accepted; and,
8. In determining whether a double costs order should be made, the court may consider any factor the court considers appropriate, including whether the offer was one that ought reasonably to have been accepted upon receipt or at any later date, the relationship between the offer and the judgment, and the relative financial circumstances of the parties (Rule 11-1(6) of the Rules) (at para. 7, citations omitted).

In S.A.M. v J.A.M., the respondent husband sought double costs against the claimant wife because she rejected his settlement offer made prior to a court application about spousal support where he was the successful party. Justice Bernard granted him double costs, finding that the claimant should have accepted the offer:

[12] The respondent was wholly successful at the hearing, and the claimant’s assertion of financial hardship is not a sufficient basis for the court to exercise its discretion to deny the respondent his costs. The respondent’s offer was one that ought to have been accepted by the claimant; the claimant has not suggested otherwise. 

Costs are meant to encourage settlement by penalizing parties who reject reasonable offers to settle, as seen above.

The spectre of costs consequences is also meant to deter meritless claims and promote behaviour that reduces the time and expense of litigation.

Costs in family cases heard in the Supreme Court of BC are governed by Rule 16-1 and Appendix B of the Supreme Court Family Rules.  

Rule 16 refers to a “Tariff of costs” and provides that costs must be assessed according to Appendix B unless a number of circumstances apply including that parties consent or the court orders costs be assessed as special costs.  The court can also award lump sum costs in an amount it considers appropriate for a particular step in the litigation.

“Special costs” are discretionary and meant to be punitive. They are awarded against a party for egregious litigation conduct, for instance, by putting the other party to unnecessary expense and inconvenience, or for incivility. Here are some examples of the types of conduct courts have found warrant special costs:

1. malicious litigation conduct, where claims are designed to humiliate and cause emotional suffering;
2. advancing unfounded allegations such as allegations of fraud or criminal conduct against the opposing party;
3. posting false and malicious internet articles about the opposing party;
4. dissipating family assets;
5. non-disclosure of assets;
6. document tampering;
7. lying under oath;
8. tendering knowingly false witnesses and evidence;
9. disobeying court orders;
10. obtaining “without notice” orders based on false evidence;
11. using “delay tactics”, such as slow compliance with disclosure orders and failing to attend examinations for discovery.

In C.L.M. v M.J.S., 2017 BCSC 1517, the court awarded the respondent father special costs against the claimant mother because of her egregious litigation conduct. Madam Justice Donegan wrote as follows:

I find that the claimant’s litigation conduct is also a form of emotional abuse and harassment that constitutes family violence. As I have extensively detailed, the claimant did not cooperate with most aspects of this litigation. She did not cooperate with any aspect of the sale of the family residence. Multiple court applications were required. The claimant did not abide by many Orders, did not respond to correspondence, took matters into her own hands by breaking into the family residence, did not attend court, never did provide full financial disclosure, and was generally obstructionist throughout the litigation (at para. 38). 

Special costs are not assessed according to Appendix B. As noted, they are discretionary, and are meant to provide a higher indemnity than what is awarded by Appendix B.

Appendix B provides a Schedule that lists various steps in a family law case along with an amount (i.e., the “tariff”) for each step.

Some steps have a set amount. For instance, for the first five days of a family law trial, the amount awarded for each day, or part of a day, is $2,000. For each additional day or part of a day, the amount is $3,000. So, if you are the loser in a 10-day trial, it could cost you $25,000 – on top of legal fees.

Other steps have a range of amounts depending on whether they involve less than ordinary difficulty, ordinary difficulty, or more than ordinary difficulty. For instance:

• for discovery and inspection of documents the range is $750 (less than ordinary difficulty), $2,000 (ordinary difficulty) or $5,000 (more than ordinary difficulty);
• for correspondence, attending conferences, taking instructions, conducting investigations or negotiations, and preparing, filing and arranging service of a notice of family claim, response to family claim, counterclaim or response to counterclaim, the range is $750 (less than ordinary difficulty), $3,000 (ordinary difficulty) or $5,000 (more than ordinary difficulty).

The default is ordinary difficulty. But if a party is put to great inconvenience and/or expense a judge might decide they are entitled to costs based on more than ordinary difficulty; for instance, if the other side is evading service of documents or refusing to provide relevant disclosure, forcing the other party to make court applications to allow for alternative service methods or production of documents.

There are set amounts for some steps, for instance:

• preparing for and attending a contested court application: $1,000 for each half day;
• preparing for and attending a judicial case conference or settlement conference: $1,000 for each half day;
• preparing for and attending a case planning conference, trial management conference or uncontested court application: $500.

When parties can settle their matter out of court, they often agree that each party will bear its own costs. For instance, separation agreements, minutes of settlement and consent orders often provide that parties bear their own costs.

When matters go to trial, the trial judge may order costs based on who is the substantially more successful party.

“Substantial” success is usually defined as 75% or better. Mr. Justice Bouck discussed this concept in Fotheringham v. Fotheringham, 2001 BCSC 1321 (“Fotheringham”), where he said:

[45]   Gold [i.e., Gold v. Gold, 1993 CanLII 1248 (BC CA)] now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance.  The words “substantial success” are not defined.  For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better.  That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter.  Rather, it is meant to serve as a rough and ready guide when looked at all the disputed matters globally.  

In family law trials, substantial success can be hard to determine because there are often multiple issues including parenting arrangements, child and spousal support, and division of family property and family debts. Sometimes one party will win on one issue and lose on another.  In Fotheringham, Justice Bouck set out a four-step inquiry for trial judges to consider when deciding on whether to award costs:

1. First, by focusing on the “matters in dispute” at the trial.  These may or may not include “issues” explicitly mentioned in the pleadings. 

• Second, by assessing the weight or importance of those “matters” to the parties. 

• Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.

• Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs (at para. 41). 

Pursuant to Rule 16-1 (10), costs are payable at the conclusion of the family law case unless the court orders otherwise. This means that costs of all steps in the case and disbursements are added up at the end and submitted in a “bill of costs”. Occasionally, a judge orders costs to be paid “forthwith” or “in any event of the cause”, for instance, after a contested court application.

Counsel for the “substantially more successful” party will usually draft a bill of costs and present it to the other party. The draft bill will include the various Appendix B costs as well as disbursements such as filing fees, photocopies, courier costs, agent fees and tax. Draft bills of costs are frequently the subject of disagreement and necessitate a further court appearance before the Registrar.

The Provincial Court’s ability to award costs is limited, but judges can award penalties and order reimbursement of expenses under the Family Law Act when a party breaches conduct orders (section 228 (1) (c)); fails to provide required disclosure (section 213 (2)(d)); or breaches orders generally (section 230 (2) (b)).

These penalties can be substantial. For instance, in S.T.B. v. C.A.T., 2023 BCPC 200, the applicant S.T.B. sought: “indemnification for all legal fees, disbursements, and taxes for the conduct of the litigation of this file as well as outstanding compensation orders totalling $3,000 by virtue of orders made by the Court against C.A.T. and which he had not paid” (at para. 1).  Judge Brecknell found that C.A.T. (who was by then deceased) had deliberately and repeatedly breached court orders and frustrated S.T.B.’s attempts to secure child support. Judge Brecknell awarded S.T.B. a total of $107,422.62 against C.A.T.’s estate.

Lindsay Kenney’s family law lawyers are experienced in navigating the complexities of costs, ensuring that our clients always receive what they deserve, and never pay more than they should.

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.