When Does the Court Order Advance or Interim Costs in a Family Law Case?
In a civil litigation context, a court will often make an order for costs after an action has been decided. The general principle is that the losing party pays the litigation costs of the winning party. This principle often does not apply in the family law context, as it is typical for success to be mixed. However, Rule 12.36 of the Alberta Court Rules provides the court with the jurisdiction to order one party in a family law action to pay costs to the other party in advance, or at an interim stage of the litigation. This rule can be used to enable a party lacking in funds to continue to advance their position, either at trial or on appeal.
The process of civil litigation can be complicated, with each case bringing unique challenges. Our Edmonton family law lawyers may be able to help address your specific needs.
The Alberta Court of Appeal recently put this rule to use in the case of VMH v. JH, 2020 ABCA 389. In this case, the parties were married and had one child. The mother brought a claim seeking a divorce, division of matrimonial property, child custody, child support and spousal support from the father. On the morning the trial was set to begin, the mother communicated to the court that she had a medical emergency and would be unable to attend. Her doctor provided a note that advised she should avoid stressful situations for 1-3 months. The trial judge acknowledged that the mother's absence would create a lack of adversarial context, which would be problematic, but found that this was outweighed by other factors, including an adjournment not being in the best interests of the child. The mother appealed the trial decision on the basis that it proceeded in her absence, and brought an application for the payment of advance costs.
What Is the Test for Advance Costs?
The Court of Appeal applied the following three-part test for granting advance costs, which was established by the Supreme Court of Canada in British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71:
- The applicant genuinely cannot afford to proceed with the litigation.
- The applicant's claim has sufficient prima facie merit to warrant pursuit.
- Special circumstances exist to justify an order for advance costs.
In VMH v. JH, the Court of Appeal found that while the mother's evidence with respect to her financial situation was not complete, it did establish that she had a genuine inability to afford to proceed with her appeal given her only income was the child support she received for the child. The Court also found that despite the trial judge's cogent reasons for refusing to adjourn the trial, there was prima facie merit to the mother's appeal of the trial decision. The mere fact that matrimonial property was an issue in the trial was sufficient to qualify as "special circumstances" under the third branch of the test.
The mother failed to convince the court that she needed the $300,000 that she had requested for advance costs. Instead, the Court of Appeal ordered the father to advance $20,000 to the mother's lawyer, which amount could be applied towards legal fees and disbursements only, and the characterization of which would be dealt with by the court hearing the mother's appeal.
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*Please note, the content of this article does not constitute legal advice. It is a general overview on a legal subject. If you need legal advice, please consult with a lawyer.