12.36: Advance payment of costs

Case Summary

This was an Application for ongoing and retroactive interim partner support and for advance Costs. Rule 12.36 addresses advance Costs in the family law context. Feth J. explored the case law that developed around the Rule, and noted that the case law provides a three-part test that also applies in family law and matrimonial cases.

Feth J. explained that the three part test considers first, the impecuniosity of the Applicant; second, whether the Applicant has established a “prima facie case of sufficient merit”, and third, whether “special circumstances bringing the claim within the class of cases to which th[e] extraordinary remedy applies”. His Lordship explained that in marital litigation, the second part of the test is usually met due to a rebuttable presumption that a dispute arising from the process of marriage and divorce was a “prima facie case of sufficient merit”; however, this Application arose from a dispute in a common law relationship. Justice Feth noted that the presumption found in marital litigation logically and often follows for claims based on an adult interdependent partnership as well. The “special circumstances” portion of the test does not often create an impediment to matrimonial or family law cases. In fact, interim Costs are often granted in that type of litigation. His Lordship found that the nature of the litigation in the underlying Action was one which fell within the scope of cases often recognized in the third part of the test; however, the presumption was rebuttable. Justice Feth also noted that even if all three parts of the test were met, granting Costs was still at the Court’s discretion.

His Lordship applied the test to the facts and found that although the Applicant had met the second and third elements of the test, she had not demonstrated impecuniosity. Justice Feth dismissed the Application for advance Costs, granted interim partner support subject to set off, and reserved the Application for retroactive support for Trial.

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