Getting the Other Side to Pay Your Legal and Expert Fees Up Front
The case of Rea v Rea, 2016 ONSC 382 (CanLII) is a rare motion brought before the Honourable. Mr. Justice P.A. Douglas. You can read it here.
The Wife brought a motion for the Husband to put the sum of $1 million into trust for her benefit. The money was to be used to pay accountants to review the Husband’s financial situation (which was vast) and to pay some of the Wife’s legal bills.
The Honourable Mr. Justice Douglas granted the motion. He cited Rule 24(12) of the Family Law Rules to do so. It states as follows:
The court may make an order that a party 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.
He cited a previous court decision as a summary of the law of Ontario on this matter. It lists the following factors to be considered in making this decision:
The ordering of interim disbursements is discretionary and the court should exercise its discretion to further the objective of fairness;
- The party seeking the disbursements bears the burden of proof;
- The party seeking the disbursements must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot pursue their legal rights;
- The claimant must show that the expenses are necessary and reasonable given the needs of the case and the funds available;
- The claimant must demonstrate that he or she is incapable of funding the requested amount;
- The claim advanced must be meritorious as far as can be determined on a balance of probabilities at the time of the request for disbursements;
- The exercise of discretion should be limited to exceptional cases;
- Interim costs in matrimonial cases may be granted to level the playing field;
- Monies might be advanced against an equalization payment, but the order for interim disbursements should not be limited to cases where it would be taken out of an equalization payment;
- The court will consider the primary objectives of the Family Law Rules in making a determination on interim disbursements; and
- An order under Rule 24(12) should not prevent a party from obtaining costs awards.
- Procedural fairness also means that both parties should be equally wary about the potential of a costs order against them.
- An order under Rule 24(12) should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a licence to litigate.