Bernie Thibault – January 2016
The holidays are over. You’ve survived a whirlwind of what feels like obligatory eating, drinking and excessive purchasing of holiday gifts for people you probably will not speak to until next December, only to do it again. Your pockets are empty and you have bills to pay, including those reoccurring and ever so important living expenses such as rent, power and water. Some plan in advance, but for others this is a surprise; either way, most of us suffer from a mid-winter financial crunch and it’s not that much fun.
Going to court over a family dispute is not entirely different, although for those lucky enough, it doesn’t happen on an annual basis. You have an objective in mind. Like gift buying, it feels obligatory for a number of reasons. Maybe the dispute is over your children. Maybe you feel your ex-partner has stiffed you of much needed financial support. Your position often seems like the only solution to the problem and you spend lots of hard earned money on a lawyer to fight for you. At the end, you have lighter pockets, and by the way, did you plan to pay your other bills? Did you go into this knowing you might be stuck paying your opponent’s legal bill too? Some do, but a lot don’t and I promise if you haven’t, the experience of this will pale in comparison to your post-holiday financial woes.
Paying the opponent’s legal bills is referred to as “costs” in legal jargon. If you have a legal issue, be sure to ask your lawyer about costs! Costs are generally payable to the more successful party in a court proceeding. In other words, if you go to trial and lose, you will likely be ordered to pay some portion of your opponent’s legal bills. Although you feel that your position is the right one, going to court can at times be very unpredictable. As one prominent Justice has forewarned, “You take your chance, you pay the price.”
Just for frame of reference, let’s say you have one day of trial and you are the losing party. As a starting point, you will face paying a minimum cost award of approximately $5,000. This is a lot of money to most people. Now, the obligation to pay this particular amount is not a certainty. You could be ordered to pay more or less depending on a number of factors. One factor is the time for trial; the longer the trial the higher the cost award. Sometimes parties come out of trial with mixed but equal success and neither party is required to pay costs to the other. Other times, one party simply does not have the means to pay costs and the award is reduced. Less commonly, one party has behaved badly either by not disclosing required documentation or unnecessarily prolonging the court process. This will most certainly increase the amount of costs that this party may have to pay.
You may be wondering: “What is the point of going to court? I don’t have that kind of money. I barely have enough to pay my lawyer!” This is exactly the point. Part of the reason behind costs is to avoid having matters proceed to trial that otherwise could and should be resolved outside of court; it is a deterrent to litigants. Court time is scarce and is extremely expensive to run (not including your own legal bills). The court will want to reserve time for the most serious of cases, usually involving the protection of children in vulnerable situations.
If you have a family legal issue and plan on speaking to a lawyer, make sure you ask him or her about costs. Ask your lawyer about his or her opinion about the likelihood of success for your case. Be prepared to invest your financial resources in the research required to answer this question, particularly in unusual fact situations. In most cases, you will spend less than if you simply had your day in court. Most importantly, speak with your lawyer about all possible solutions to solve your legal issue. We all have a tendency to feel our position is the best way. The reality is that there is often more than one way to reasonably deal with an issue. In most cases, your lawyer should be able to help you to come out of the situation with a solution that you and your opponent can live with. This will have hopefully avoided increased legal fees and the sting of costs in the unfortunate instance that you take your case to court and end up with a result you did not want.
 Maxwell v. Garner, 2015 NSSC 337 (CanLII)