“Pursuant to Rule 24(18) of the Family Law Rules, 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”.
General principles relating to the exercise of that jurisdiction include the following:
a. As indicated by the permissive wording of the rule, the making of such orders is discretionary. In exercising that discretion, courts strive to ensure that the primary objective of fairness under the Family Law Rulesis met; e.g., by ensuring that all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial. Simply described, such awards are made to “level the playing field” between family law litigants, especially in situations involving an impecunious party and a much more prosperous opponent; i.e., where one party in a matrimonial or family case is demonstrably at a severe financial or economic disadvantage: see Rule 2(3)(a) of the Family Law Rules; Stuart v. Stuart, 2001 CanLII 28261 (ON SC), [2001] O.J. No. 5172 (S.C.J.), at paragraphs 8-9; Ludmer v. Ludmer, 2012 ONSC 4478 (CanLII), [2012] O.J. No. 3681 (S.C.J.), at paragraphs 14-16; Rea v. Rea, 2016 ONSC 382, at paragraph 14; and Romanelli v. Romanelli, 2017 ONSC 1312, at paragraphs 15-16, 19 and 41.
b. Such awards are no longer made only in “exceptional” cases, or dependent on a finding of “exceptional” circumstances”, in the context of family law litigation: see Stuart v. Stuart, supra, at paragraph 9; Ludmer v. Ludmer, supra, at paragraph 15; Rea v. Rea, supra, at paragraph 14; and Romanelli v. Romanelli, supra, at paragraph 15.
c. Nor is the making of such orders limited to cases where the requested payment is to be “taken out of” an expected equalization payment. Such orders are possible even in cases where there will be no equalization payment; e.g., in cases where spousal support is the only meritorious claim: see Stuart v. Stuart, supra, at paragraph 14; Ma v. Chao, 2016 ONSC 585 (Div.Ct.), at paragraph 10; Rea v. Rea, supra, at paragraph 14; and Romanelli v. Romanelli, supra, at paragraphs 19 and 42. As emphasized in Stuart v. Stuart, supra, at paragraph 14, leveling of the playing field “should not be limited to those with an expected equalization payment”. As emphasized in Romanelli v. Romanelli, supra, at paragraph 41, a party whose only meritorious claim is spousal support still cannot pursue settlement or consider settlement offers without knowing where he or she stands; something which may very well require valuations of the property and income of the opposing spouse, and an order for payment of interim disbursements and fees pursuant to Rule 24(18). That was found to be the case in Romanelli v. Romanelli, supra, where the business affairs of the spouse facing a claim for spousal support were complex and involved numerous corporations. Ibid., at paragraphs 37-41. More generally, demonstration of a moving party’s ability to repay amounts a litigation opponent is required to pay pursuant to Rule 21(18) of the Family Law Rulesis not required before the court will make such an order: see Romanelli v. Romanelli, supra, at paragraphs 18-20.
d. However, the party requesting such an order bears the onus on such a motion, and must demonstrate clearly that the disbursements are necessary and reasonable, having regard to the needs of the case and the funds available: see Stuart v. Stuart, supra, at paragraph 11; Ludmer v. Ludmer, supra, at paragraph 16; and Rea v. Rea, supra, at paragraph 14. In that regard, it has been emphasized that such necessity may be based not only on the complexity of legal issues to be litigated in a case, but also on indications the litigation will be hard fought; e.g., in cases where there are few if any admissions and extensive denials, such that proof of a claim will require the retention of counsel engaged in time-consuming effort, and a claimant is likely to be completely lost without the ongoing assistance of counsel. See Romanelli v. Romanelli, supra, at paragraphs 34, 36 and 42. For example:
i. if an expert is the subject of a disbursement in respect of which payment is sought, the party requesting the order must demonstrate that there is a clear need for the expert’s services, and should provide appropriate information and/or explanation in relation to the expert’s proposed fees: see Stuart v. Stuart, supra, at paragraph 11; and Ludmer v. Ludmer, supra, at paragraph 58. Having said that, courts also recognize that provision of precise information and cost estimates in that regard may not be possible in situations where the litigation is at an early stage and a disbursement in question relates to the expert analysis of documentation and information that has yet to be provided and/or which is the subject of a disclosure dispute. See Rea v. Rea, supra, at paragraph 18-19; and Romanelli v. Romanelli, supra, at paragraph 49 and 58. The general circumstances may suffice to make it sufficiently clear that the matter is complicated and that an expert’s analysis necessarily will be involved and time-consuming. However, that does not mean that it is reasonable or necessary for the full amount of such an anticipated expense to be advanced “up front”. See Rea v. Rea, supra, at paragraph 19; and
ii. a claim for payment of past and/or anticipated lawyer fees should be supported by an affidavit from the party’s lawyer providing details of when and how outstanding fees were incurred and details of anticipated legal costs, including how much time the lawyer expects to spend on anticipated matters, (such as trial preparation and/or trial), who will do the work, and at what hourly rates: see Rosenberg v. Rosenberg, [2003] O.J. No. 2193 (S.C.J.), at paragraph 19; Ludmer v. Ludmer, supra, at paragraphs 59-62; Rea v. Rea, supra, at paragraphs 15 and 26; and Romanelli v. Romanelli, supra, at paragraphs 48-51. Requiring the provision of such information, to justify such awards, is a reflection of the court’s ongoing concern about controlling the process, particularly in current times where costs of litigation, including lawyers and experts have become prohibitive. See Rosenberg v. Rosenberg, supra, at paragraph 19; and Rea v. Rea, supra, at paragraph 15. Having said that, the court also recognizes that exact estimates of future legal costs inherently are speculative, difficult or impossible at the early stage of litigation, and that a party seeking a Rule 24(18) order in relation to future legal fees effectively may be limited to providing a general “plan of attack” and an outline of the future steps contemplated to bring a matter to trial; i.e., a summary of anticipated legal steps and the estimated expense of those steps, without providing a formal bill of costs. See Harbarets v. Kisil, [2014] O.J. No. 4239 (S.C.J.), at paragraph 5; Rea v. Rea, supra, at paragraphs 27 and 33; and Romanelli v. Romanelli, supra, at paragraphs 46, and 49-51.
Where such particularity has not been provided in relation to a motion of this nature, (i.e., where a motion for payment of interim disbursements and fees fails to supply proper evidence of the reason for such disbursements and fees, and estimated costs in that regard), a court may make adverse findings, make downward adjustments in the amount to be awarded, or dismiss or adjourn the Rule 24(18) aspects of a motion without prejudice to the party seeking such an order renewing the request on the basis of “better and proper” evidence outlining, with greater detail and supporting evidence, the basis of the request: see Hall v. Sabri, [2011] O.J. No. 4178 (S.C.J.), at paragraphs 73 and 78-79; Ludmer v. Ludmer, supra, at paragraph 62; and Romanelli v. Romanelli, supra, at paragraphs 44, 61, 63 and 65.
e. The party requesting such an order also must demonstrate that he or she is incapable of funding the requested amounts: see Stuart v. Stuart, supra, at paragraph 12; Ludmer v. Ludmer, supra, at paragraph 16; and Rea v. Rea, supra, at paragraph 14. In that regard, it nevertheless also has been noted that a spouse with significant assets but little income, (especially in comparison with the other spouse), should not be required to deplete his or her resources, however substantial, in order to advance a claim. See Hughes v. Hughes(2009), 2009 ABQB 154 (CanLII), 68 R.F.L. (6th) 119 (Alta.Q.B.), at paragraph 25. Demonstration of the responding party’s “ability to pay” is also a relevant consideration: see Ludmer v. Ludmer, supra, at paragraphs 34 and 51-56; and Rea v. Rea, supra, at paragraph 31. In that regard, while a responding party similarly should not be required to erode capital in order to satisfy an award of interim disbursements, in the absence of exceptional circumstances, doing so may be considered reasonable and necessary in situations where there is a wide disparity between the parties’ respective financial positions and/or where the party has a demonstrated history of eroding capital or using it to finance past expenditure. See Rea v. Rea, supra, at paragraph 31.
f. Moreover, the claim or claims being advanced by the party requesting such an order must be meritorious, insofar as that can be determined on the balance of probabilities at the time of the request for disbursements: see Stuart v. Stuart, supra, at paragraph 13; and Ludmer v. Ludmer, supra, at paragraph 16. In this context, the issue of whether a claim is meritorious is nevertheless a fairly low threshold, especially at an early stage of proceedings: see Rea v. Rea, supra, at paragraph 24; and Romanelli v. Romanelli, supra, at paragraph 26. It certainly does not mean that a claimant has to prove his or her case prior to obtaining such an order; a requirement that clearly would be too high, as someone who has proven his or her case then would have no need for such an order to facilitate proof of his or her case. In this context, demonstration of a “meritorious” case only requires that the claimant have a prima faciecase, in the sense of there being no reason to conclude that a claim is clearly without merit, and the claimant having a case which “makes sense to prosecute” having regard to facts presented by way of affidavit; i.e., a reasonable case on the face of the material filed. In that regard, the test may be close to the test for approval of a legal aid certificate; i.e., would counsel advise a client of modest means to proceed with the claim? See Rea v. Rea, supra, at paragraph 24; and Romanelli v. Romanelli, supra, at paragraphs 24-25.
g. Furthermore, any order made pursuant to Rule 24(18) of the Family Law Rulesshould not immunize a party from adverse cost awards. Such orders are made to allow a case to proceed fairly. They should not be such that the recipient of such a payment feels like he or she has a “licence to litigate”: see Stuart v. Stuart, supra, at paragraph 10; Ludmer v. Ludmer, supra, at paragraph 16; and Rea v. Rea, supra, at paragraph 14.
Not surprisingly, the quantum of awards made pursuant to what is now Rule 24(18) of the Family Law Rules has been rising in a manner commensurate with the significant increases in the cost of litigation witnessed over the past several decades. For example, in Rosenberg v. Rosenberg, supra, it was noted that such awards in relation to interim disbursements and fees were not known to have exceeded $35,000. By 2016-2017, that upper range figure was considered “out of date”, as a recent review of more contemporary reported decisions indicated various cases in which such awards had been made in the range of $100,000 to $500,000; see Rea v. Rea, supra, at paragraph 16, and Romanelli v. Romanelli, supra, at paragraph 57. Having said that, it also has been suggested that awards in the upper level of that range were outliers dependent on their particular facts; e.g., with claims for $200,000 or more pursuant to Rule 24(18) still being regarded as “staggering” and amounts which risked such awards effectively providing a claimant with litigation carte blanche, which was not the intended purpose of the ruleS: see Gold v. Gold, [2009] O.J. No. 4000 (S.C.J.), at paragraphs 43-45; and Romanelli v. Romanelli, supra, at paragraphs 59-60.
In my view, such reported decisions confirm that Rule 24(18) awards in the six-figure range outlined above are certainly possible, but also emphasize that courts should take a cautious approach in that regard. Such awards are not made as a matter of course, and must still be demonstrably justified in the manner outlined above.