One of the most asked questions I get from clients is, "What are court costs?"
Court costs are essentially a figure that a judge orders to be paid by one party to another, after the conclusion of a matter. Sometimes, costs are ordered after an interim hearing, sometimes they are awarded after a trial.
Probably the biggest misconception about costs is that they will be awarded in an amount that will pay for all of a person’s legal fees. This is very rarely the case. But costs are often awarded in smaller amounts during the course of litigation.
Clients need to understand that the judge in a matter has absolute discretion as to whether to order any amount of court costs. There is no absolute right to costs in a matter, regardless of the outcome of the proceedings. The judge may consider a number of things, including the result in the proceeding, any offers to settle that the parties have made in writing as well as other factors such as:
• The amount claimed and the amount recovered in the proceeding;
• The complexity of the proceeding;
• The importance of the issues;
• The conduct of any party which tended to shorten or lengthen unnecessarily the duration of the proceeding;
• Whether any step in the proceeding was improper, vexatious or unnecessary;
• A party’s denial or refusal to admit anything which should have been admitted;
• If there are other parties to the proceeding who are seeking costs and any costs awards granted to those parties;
• Any other matter relevant to the question of costs.
In many cases, costs are ordered as a "punishment" of sorts when a judge determines that a person has conducted him or herself poorly during a proceeding.
For example, in the recently decided case of Price v. LaFlamme, the judge chastised the mother for doing everything possible to discourage an early resolution of the matter. He determined that the mother may have been trying to drag out proceedings until the father ran out of money to keep fighting the custody battle. The judge further determined that the mother did not instruct her lawyer to compromise and stick to relevant issues and that "no method of delay was avoided."
The conclusion was that by behaving in this manner, the mother also inappropriately used the court’s resources.
The ultimate decision was that after years of complex, irrelevant, drawn-out litigation, the father was entitled to a cost awarded in excess of $83,000. While this is a rarely seen and very large award (cost awards are often only a few hundred dollars), it does potentially speak to the fact that judges are growing tired of parties fighting for the sake of fighting and they want to see people making greater efforts to resolve matters without lengthy litigation.
Given the hardship that litigation places on parties and their children and this very clear message from the court about deliberately dragging out court proceedings, it makes sense that parties and their lawyers should be making reasonable efforts to resolve matters without going to court, using mediation and counselling services, and only litigating when all other reasonable efforts have proved unsuccessful.
» Kelli Potter is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition March 9, 2013