“Pursuant to Rule 24(12) of the Family Law Rules, the court may make an order that a party pay an amount of money to cover part or all of the expenses of carrying on a case by the other party. The power to do so is discretionary and the discretion must be applied to further the primary objection of fairness. (Rogers, J. Stuart v. Stuart, 2001 ONSC CarswellOnt 4586)
The rule is intended to enable the court “to provide a level playing field, to ensure that all parties can equally provide or test disclosure, make appropriate valuations of net family property, make or consider offers to settle or prepare and proceed to trial.” (Boris v. Boris, 2005 ONSC CarswellOnt 975)
In paragraph 29 of Woodburn v. Woodburn, 2016 ONSC CarswellOnt 17658, Justice Emery summarized the principles applicable on a motion for payment of interim costs as follows:
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- The moving party must provide evidence to establish that, on the balance of probabilities, there is a prima faciecase of sufficient merit to warrant pursuit;
- The moving party must provide evidence that the interim payment of a specific amount of money for expenses to carry the case is necessary and the basis for the amount requested;
- The moving party must demonstrate that she or he is incapable of funding the requested amounts.
- The moving party must provide evidence that there are no resources available to fund the cost or that it would not be fair or reasonable to access resources for the litigation;
- The court has discretion in special circumstances to level the playing field so that all parties have an equal and fair opportunity to engage the litigation process for a just determination of their issues.”
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