“There is no statutory basis on which a court may order one party to pay the other a sum as an advance on his or her claim for an equalization payment: Stork v. Stork, 2015 ONSC 312 (CanLII). In Zagdanski v. Zagdanski, (2001), 55 O.R. (3d) at p. 6 (Ont. S.C.) a partial equalization payment was advanced. Despite doubt being expressed about the correctness of that decision, McGee J. in Stork identified at least seven times in Ontario that Zagdanski had been followed and noted that it had been cited with approval a further 11 times. The Zagdanski factors are:
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- There is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount.
- There will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment.
- There will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action.
- There may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.”
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