A recent Court of King’s Bench decision ends with a costs award which is probably correct. But earlier, its reasons quote, apparently with approval, several surprising denigrations or severe limits on costs in family law litigation. Earlier contrary Alberta Court of Appeal decisions are not mentioned, nor is the lengthy policy discussion in them. A recent Court of Appeal decision on the shallow status of Schedule C is almost brushed aside, or given no application to family cases.
Some of the brief policy arguments quoted in the dicta make no sense. The dicta suggest that costs delete money available needed for non-litigation needs. But that artificial reasoning, if true, would equally apply to most civil litigation and its expenses. Parties to civil suit are often not strangers. They may be business associates, employer and employee, or other members of a small group.
In retrospect, lengthy, complex litigation often wastes large sums better spent on other aims. But that is a ground for awarding substantial costs, not for denying them. Usually at the end, the court has no doubt which party is right, and usually was right all along.
Odder is the implication that party-party costs are some additional expense imposed by the court. But does a costs order increase litigation expenses? Never. Costs awarded between parties are an allocation of some fraction of the actual expenses incurred. Those expenses have already been paid out, or contracted for, long before the costs award. A “no costs” award does not reduce expenses; it just leaves them where they fell. In family law, often the winner is the party raising and feeding the children. Costs then help the children. Besides, costs influence behavior; it must not be taken as a given. No plaintiff is forced to sue; each had to decide whether his or her claims were correct and worth pursuing. Each defendant must assess whether the opponent’s claim is correct and reasonable. In family law, often both sides are in effect plaintiffs. Family cases going to trial often involve at least one stubborn party. Sometimes in family suits one side makes grave accusations against the opponent, with little or no foundation. To treat equally the party who won and the party who lost, usually has nothing to recommend it, as the Court of Appeal has explained at length.
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.