Costs Awards: who pays, who doesn’t and what the Court considers

When a family law matter goes to court, one of the last questions the judge decides is who pays the legal costs. Many people assume the winner gets their legal fees paid. Two recent decisions from the Court of King’s Bench of Alberta, both by Justice Marion, show that the answer is more complicated than that.

The starting point: the winner usually gets costs

The general rule in Alberta is that the successful party is entitled to have the other side pay part of their legal costs. Costs are meant to cover only part of your fees. Courts often use a rough guide of 40 to 50 percent of reasonable legal fees, and they also look at whether that amount is fair to the person paying.

The judge has wide discretion. The court can look at how the case turned out, how important and complicated the issues were, how each party behaved, and whether anyone made reasonable settlement offers.

In family law, “winning” is rarely simple

These same rules apply in family cases, but success is harder to measure. A family trial usually deals with several connected issues at once, such as property division, child support and spousal support.

In Savoie v Lambert, 2024 ABKB 744, the court explained that a party needs “substantial success,” not total success. The judge looks at the overall result instead of keeping score issue by issue. Useful questions include:

1. Who came out ahead in dollar terms?
2. Who won on the most important issue?
3. How did the result compare to what each person was asking for at trial?

If the court cannot say that one person clearly came out ahead, each side usually pays their own costs.

Winning does not guarantee costs

In Savoie, the wife was substantially successful on property division and support. She still received no costs. The court pointed to several reasons:

1. She got far less than she had asked for at trial.
2. Some of her positions were unreasonable and had no legal support, which made the trial longer and raised the husband’s legal bills.
3. She represented herself for about four years, including at trial.

The court also noted that the husband’s lawyer did much of the work of organizing the trial and helped the process run smoothly. Judges notice this, and it can count when costs are decided.

Representing yourself usually means no costs

People who represent themselves normally do not get costs, because they have not paid a lawyer. The court can make an exception, but only in unusual cases where an award would encourage settlement, discourage abusive litigation or promote efficiency. Neither the wife in Savoie nor the husband in Uhuegbulem v Balbi, 2025 ABKB 318 met that test.

Settlement offers must be clear

Settlement offers can affect costs, but only if the court can compare the offer to the trial result. In Savoie, both parties’ offers were too vague to compare. An offer to split property “50 percent” does not help much if it does not say which assets go to whom and what they are worth. A party also cannot pick out the good parts of an offer and ignore the rest.

The Uhuegbulem decision adds one more warning. Settlement discussions are private. A party should not show the judge settlement messages without the other side’s consent, and the court will ignore them if they do.

Behaviour matters on both sides

Uhuegbulem arose from a separating couple’s family arbitration. The husband went to court to remove the arbitrator for bias. The arbitrator fought the case, then resigned, and the case ended without a hearing on the merits.

The arbitrator asked for costs because the case was struck. The court refused. Each side got part of what they wanted, since the husband achieved his goal of removing the arbitrator. The court also criticized how both sides behaved. The husband wrote letters to the judge asking for orders and skipped a mediation the court had ordered. The arbitrator brought an application that had no merit, billed the family for time spent defending himself in court, and made payment a condition of going ahead with the mediation. The result was that each side paid their own costs.

What this means for you

1. Costs are never automatic, even if you win.
2. Reasonable positions and good conduct throughout the case can protect you on costs.
3. Settlement offers should be clear, specific and in writing.
4. Asking for far more than you end up getting can cost you.
5. Follow court orders and use the proper court process instead of writing to the judge.

Together, these decisions show that costs in family law are about more than who won. Courts look at the whole picture: how each person approached the case, whether their positions were reasonable, how they handled settlement, and whether they followed the court’s process. Family disputes are often emotional, but the parties who stay practical and focused on resolution tend to fare better when costs are decided. Knowing these principles early can help people make better decisions throughout their case, not just at the end.