SF v NG, 2021 ABQB 210


12.36: Advance payment of costs

Case Summary

The Applicant mother applied under Rule 12.36 for advance payment of Costs from the father to fund her continued legal representation in their family proceedings. The parties were separated in 2016 and both children lived with the father. The mother stated that she intended to contest the parenting arrangement and division of matrimonial property, and needed advance Costs to be ready for Trial.

The Court considered the three-part test for advance Costs set out in VMH v JH, 2020 ABCA 389: (a) is the Applicant impecunious to the point where they would be unable to proceed further without an advance award of Costs?; (b) does the Applicant have a prima facie case for the relief sought?; and (c) is it the type of case that warrants an award of Costs?

In considering the factors under the test, the Court noted that neither party had provided comprehensive financial information nor elected to cross-examine the other on their respective Affidavits. The “playing field” was not so unlevel as to warrant the father paying the mother’s Costs when the father’s financial constraints were related to the couple’s joint debts, and the mother did not pay any child support.

The Court noted that the burden for a prima facie case is low. The mother wanted to apply again for visitation with the children, however, she did not point to any evidence that there was a change in circumstances that would allow the Court to revisit the numerous refusals of visitation in the recent past. The parties did not agree on whether there was matrimonial property that would warrant a Trial, with the father stating that all that was left was the matrimonial debt. In this case, there was no compelling evidence that a significant change in parenting was imminent and the Court noted that parties do not generally proceed to Trial and spend money on lawyers, only to divide debt.

The Court also noted that the test involves consideration of the stage that the litigation is at. The mother sought Costs to prepare for Trial, but the matter did not seem to be on the verge of readiness for Trial. The parties did not agree on whether Questioning was complete. Hollins J. noted that an Application for advance Costs that is unsuccessful at one stage may not necessarily be unsuccessful at a later stage of the proceedings. In the current circumstances, the mother may have been required to navigate the next steps of the litigation without representation, but Hollins J. did not see this as disadvantageous to her. Hollins J. held that it may be appropriate to meet with Resolution Counsel and attempt some form of alternate dispute resolution, and if a binding mediation/arbitration was required, then the mother could resubmit a clearer funding request.

The mother’s Application for advance payment of Costs by the father was dismissed.

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