“The test the wife must meet to persuade the court to exercise its discretion to grant her leave to bring a motion for an advance of $100,000 or interim costs of $100,000 is a two-fold test:
i) Does she have an arguable case on the merits – a prima faciecase for the relief she intends to seek if leave is granted; and
ii) Can the court be assured, with or without terms, that allowing the wife to bring her motion for an advance/interim costs will not result in an abuse of process? Conceicao v. Abraham2021 ONSC 2330 at para 5; Rubato. v. Sandoval, 2018 ONCJ 85 (CanLII), at para. 42.
In Ludmer v. Ludmer, 2012 ONSC 4478 at paras 25 and 3 (“Ludmer”), the court articulated that someone cannot have an arguable case on the merits, (the first part of the test for leave), where he/she is bringing a motion for relief which had earlier been denied by the court if:
iii) there has been no change in circumstance since the first motion;
iv) the moving party does not address why initial motion judge’s decision should not be given deference; and
v) the necessary factual foundation to support the proposed motion does not exist.
I agree with Mesbur, J.’s reasoning in Ludmer v. Ludmer, that the party seeking leave to bring a motion where the relief has already been denied by the court, has a higher burden to demonstrate the factual foundation to support the relief sought on the motion. In para. 25 of Ludmer, Mesbur, J. stated:
“the question is whether intervening events have changed the legal landscape to sufficiently support the wife’s motions. In the particular circumstances of his case, where similar motions have already been denied, it seems to me the wife has a higher burden to show the necessary factual foundation to support her motions. She is not precluded from bringing the motions; she must meet the higher burden I have articulated.
Eskandari v. Rowshani-Zafaranloo, 2021 ONSC 6083 (CanLII) at 23-25