“Subrule 24 (18) (previously 24 (12)) of the Family Law Rules permits the ordering of interim disbursements:
24 (18) 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. O. Reg. 418/18, s. 1.
Subrule 24 (18) must be read in conjunction with the primary purposes of the rule which are found in subrule 2 (2) and 2 (3):
2 (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
2 (3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
The order under subrule 24 (18) is a discretionary one. In exercising discretion under the rule, the court must ensure the primary objective of fairness under the Family Law Rules is met: Ludmer v. Ludmer, 2012 ONSC 4478, para 15.
In the leading case in the Family Law context, Stuart v. Stuart, the court delineated a three part test for interim disbursements:
-
-
-
-
- The claimant must clearly demonstrate that the disbursements 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 amounts;
-
-
-
-
-
-
-
- The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the requests for disbursements.
-
-
-
The court in Stuart added that:
9) The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24 (12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possible go to trial. Simply described, the award should be made to level the playing field.
However:
10) An order under section 24 (12) should not immunise a party from costs awards. The order is to allow the case to proceed fairly and should not be such that a party feels a license to litigate.
Regarding Part 1 of the test, the court in Stuart said at paragraph 11:
11) Certainly the proof of the necessity of interim disbursements would be critical to the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.
In the case of Ludmer v. Ludmer, Mesbur J. expanded on that, taking subsequent cases into account as well. She found evidence concerning a claim for interim disbursements was deficient where:
-
-
-
-
- There was no affidavit from counsel regarding outstanding fees;
-
-
-
-
-
-
-
- There was no evidence of the prospective costs of the case.
-
-
-
Consequently, the claim for interim costs was dismissed. There was a similar result in Beasley v. Beasley, [2019] O.J. No. 1192.”