12.36: Advance payment of costs

Case Summary

This was an Application by the Applicant for interim spousal support and advance litigation Costs in the amount of $200,000.

Sidnell J. referred to the three-part test set out in British Columbia Minister of Forests v Okanagan Indian Band, 2003 SCC 71 that must be satisfied to make an order pursuant to Rule 12.36. This test requires that the Applicant demonstrate: (i) impecuniosity; (ii) a prima facie meritorious case; and (iii) special circumstances bringing the case within the narrow class of cases where the extraordinary exercise of powers is appropriate. Justice Sidnell also cited Blaney v Murphy, 2020 ABQB 196 for the proposition that this three-part test properly applies to family law cases.

In applying the case law to the facts, Her Ladyship found that the Applicant had substantial assets and did not require advance litigation Costs to “level the playing field”. The “impecuniosity” aspect of the test was not met. Justice Sidnell therefore did not consider the remaining elements of the tripartite test and dismissed the Application.

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