“The applicant wife seeks an order that the respondent husband pay her $150,000 within 30 days to cover interim disbursements.
Family Law Rule 24(12) states that “[t]he 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.”
Rule 24(12) is discretionary. In exercising discretion under rule 24(12), the court must ensure that the primary objective of fairness as set out in rules 2(2) and (3) is met. Specifically, the court must deal with cases justly and ensure that the procedure is fair to all parties. As Mesbur J. stated in Ludmer v. Ludmer, 2012 ONSC 4478 at para.14, “One of the primary themes of the case law is that orders may be required in order to ‘level the playing field’ between the litigants.”
The party seeking a payment under rule 24(12) does not have to prove that exceptional circumstances exist. Instead, the respondent must satisfy the following factors (see Stuart v. Stuart (2001), 2001 CanLII 28261 (ON SC), 24 R.F.L. (5th) 188 at para. 8; Ludmer at paras.15-17; Sadlier v. Carey, 2015 ONSC 3537 at paras. 34-38 and Turk v. Turk, 2016 ONSC 4210 at paras. 4, 24; McCain v. Melanson, 2017 ONSC 916 at paras. 2 to 4):
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- On a balance of probabilities, the moving party’s claim/defence has sufficient merit.
- The legal fees are necessary and reasonable given the needs of the case and the funds available.
- The moving party is incapable of funding the requested amount.”
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