“Rule 24(18) of the Family Law Rules, O. Reg. 114/99, allows the court to “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”.
The purpose of an award for interim disbursements is “to level the playing field to ensure that meritorious claims in the family law context are not abandoned or forfeited by those who lack financial resources and, as a result, are at a significant financial disadvantage relative to the other party in the proceeding”: Morton v. Morton, 2015 ONSC 4633 (Ont. S.C.J.), at para. 98.
Rule 24 evidences a less stringent approach in the family law context than is the case in public interest litigation. Consistent with the primary objective, r. 24 seeks to ensure the just determination of the issues between the parties, and recognizes that there may be circumstances where one party cannot afford to seek justice on meritorious claims given the disparity in financial resources available to that party: Morton, at para. 99.
On a motion seeking interim disbursements, the moving party must demonstrate:
a. The interim disbursements for which an advance payment is requested are important to matters in issue in the proceeding as a whole;
b. The disbursements are necessary and reasonable given the needs of the case and the funds available. If the disbursements are for payment of an expert, the moving party must demonstrate a clear need for the services of the expert;
c. The moving party is incapable of funding the requested amounts;
d. 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 request for disbursements; and
e. The imposition of the payment on the responding party will not cause undue hardship to the payor: Morton, para. 97, citing Stuart v. Stuart, [2001] O.J. No. 5172(Ont. S.C.J.), at paras. 7, 11-13.
It is no longer necessary to find exceptional circumstances to order interim disbursements under the Family Law Rules. The order is a discretionary one. The court must ensure the primary objective of fairness under the Family Law Rules is met: Ludmer v. Ludmer, 2012 ONSC 4478 (Ont. S.C.J.), at para. 15.
The court’s discretion should be exercised to ensure that all parties can equally provide or test disclosure, make or consider offers, or possibly go to trial — in other words, to level the playing field: Stuart, at para. 8; Ludmer, at para. 16.
An order for interim disbursements should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a licence to litigate: Stuart, para. 8; Ludmer, para. 16.”
Fiorellino-Di Poce v. Di Poce, 2019 ONSC 7074 (CanLII) at 11-15