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Court Orders Spouse to Pay Advance of Fees to Fund Litigation

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Court Orders Spouse to Pay Advance of Fees to Fund Litigation

In a recent decision, an Ontario court considered one spouse’s plea for an order of interim costs and disbursements to cover the expenses of carrying on the parties’ litigation.

The Parties’ Story

The parties began cohabiting in October 2008, married in June 2011 and separated in 2017. The parties had signed a marriage contract the day before they got married. Both parties had legal advice and there was financial disclosure attached. The contract outlined what would happen to the parties’ property in the event of a marriage breakdown, and stipulated that neither party would be entitled to spousal support from the other.

In March 2017, the wife was presented with, and signed, an agreement which was supposed to amend the marriage contract. Among other things, this amending agreement provided that the wife released the husband from all claims that she may have had or would acquire to any interest in the matrimonial home. The agreement also contained full spousal support and property equalization releases. The wife had no legal advice or financial disclosure before signing this agreement.

The wife, who wanted to set aside the amending agreement, maintained that she was out of money and required the husband’s financial assistance to properly litigate this matter. As a result, the wife brought a motion for payment of interim costs and disbursements.

The Relevant Legal Principles

The court has the discretion to order one party to pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. The rationale for making an order for interim costs and disbursements is that it levels the playing field between litigants of different economic means. This furthers the primary purpose of the Family Law Rules (FLR), which is to ensure that cases are tried justly.

The court referred to a leading Ontario case, which outlines seven “themes” concerning the granting of interim costs and disbursements, including that:

  1. the ordering of interim disbursements is discretionary;
  2. the claimant must demonstrate that the interim disbursements are necessary to pursue his or her case. That is, the claimant must demonstrate that absent the advance of funds for interim disbursements, he or she cannot present or analyze settlement offers or pursue entitlement;
  3. the interim disbursements must be shown to be necessary;
  4. the claim advanced must be meritorious;
  5. the exercise of discretion should be limited to exceptional cases;
  6. interim costs are for the purpose of leveling the playing field; and
  7. monies may be advanced against an equalization payment.

The Court’s Decision

The court granted the wife’s motion and ordered the husband to pay $40,000 as an advance towards the wife’s costs and disbursements. In doing so, the court first noted that the threshold for a meritorious claim was fairly low in claims for interim costs under rule 24(18) of the FLR. The court explained:

All that the material has to demonstrate is that this is a case that is worthwhile to prosecute; would it be reasonable for an individual of modest means to expend legal fees on a case such as the present one?

In this case, the court found that the wife’s case for setting aside the amending agreement was, on its face, meritorious. The result of the agreement signed by the parties appeared to be unconscionable, and the court was left to ask why any reasonable person would sign this particular amending agreement.

While the husband argued that the only funds available to him were his RRSPs, the court found that the husband could not suggest that his RRSPs – which totaled nearly $1,000,000 – should remain intact while the wife had been forced to cash in her RRSP to live on and to fund her separation and this litigation.

In the end, the court determined that the appropriate amount for an advance was $40,000. This amount was intended to bring the wife to the end of the trial regarding the amending agreement.

Lessons Learned

If you do not have enough money to fund your litigation and your spouse has a lot of money at their disposal, it is possible that you may be entitled to an order for interim costs and disbursements.

Contact Gelman & Associates if you are involved in a separation or divorce and have questions about your rights. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (844) 736-0200, or contact us online to schedule an initial consultation.

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - enforcement & modification orders

A restraining order in the context of family court is an order that prohibits the contact that one party can have with another. Based on the particulars of a given restraining order, it can prohibit direct and/or indirect contact, and require that the party against whom the restraining order has been taken out maintain a certain physical distance from the other party. In the family law context, a restraining order has to be requested by way of a motion brought at the court. The party seeking the order must provide affidavit evidence to substantiate the need for the restraining order. The party against whom the order is sought must likewise have an opportunity to argue his/her case, and to this end judges will usually ask that a motion for a restraining order be brought with notice to the other party.

If you believe that your restraining order is required immediately, you may bring an urgent, ex parte motion for same (ex parte means that the motion is brought without notice to the other party, who is not served with your motion materials and is not given notice that the motion will even be taking place). Because restraining orders can affect possession of the matrimonial home and parenting time, it is imperative that the party against whom the order is sought have the opportunity to make his or her own case. Accordingly, if a judge grants a restraining order brought on an urgent, ex parte motion, the judge will also order that the motion return in one week’s time so that the party against  whom the order has been granted may be  properly served with motions materials and  have an opportunity to defend the action.

Suppose one of the parents does not follow the court’s order. He or she may be called to court and explain why she wasn’t able to uphold the initial agreement. If his or her reason isn’t valid, the court may change the earlier deal, and it may favor the other parent.

Each province and territory in Canada has a maintenance enforcement program for family orders and agreements. Additionally, the federal government may refuse to issue a Canadian passport if the applicant is delinquent in child support payments. They also have the authority to garnish wages for the back payments owed. In the USA, the Office of Child Support Enforcement, which is part of the Administration for Children and Families in the Department of Health and Human Services, is now in charge of the federal child support enforcement program.

Ex parte motions provide an exemption to the principles of due process in emergencies by allowing you to petition the court without having to give notice or serve the other parties in your case. If the judge issues the ex parte order, it’s only for a limited time.

Yes, it is possible to change the initial terms of a separation agreement if you and your spouse agree to the changes and sign a written agreement to change the terms. If your spouse does not agree to change the terms, you can make a court application to change the separation agreement.

No matter what the circumstances surrounding your separation agreement are, our Toronto separation lawyers can help you make changes when you need to.

You can use this motion if you need to change your order. By filing this motion, you’re asking the court to change something in your final order. It would help if you showed that there has been a substantial change in circumstances since the last court order. You can’t file this motion just because you disagree with the order. You shouldn’t also file this motion too soon after the court releases the final order. If things have changed in your children’s lives, you can ask to modify the order based on those changes. Other samples you can change may include but not be limited to:

  • Spousal support
  • Decision-making issues for the children
  • Issues related to parenting time
  • Child support

If you deny court-approved parenting time, it could be a possibility. The court may find you in contempt. You may also have to compensate the other person for any lost parenting time or legal fees they had to pay to enforce the parenting arrangement.

If you get an order and want to change it, you first need to assess your relationship with the opposing party.
If you both agree, you can apply for a consent order and need not go to court. If you do not, you may seek help from mediators or counsellors who can help you talk things out. If you still do not agree after mediation, you will need to apply to the court to change the order.

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