The Plaintiff and Defendant were in a relationship between 2015 and 2020. During this time, the Plaintiff stopped working due to health issues and received CPP disability benefits. The Defendant supported the Plaintiff financially, and they lived together in various rented and owned properties. After they separated, various disputes arose over the division of family property and partner support.

The Plaintiff applied to consolidate the Property Action and the Support Application. The Court noted that the two matters involved the same parties, arose from the relationship between the two, had some common facts and issues and were at similar procedural stages, which would not cause delay by joinder with the other. After considering Rule 3.72, the Court concluded that no party would be prejudiced by the two matters proceeding together. Both the administration of justice and the parties’ finances would benefit since joinder would reduce duplication and promote efficiency and cost-effectiveness. Therefore, the Property Action and the Support Application were Ordered to be consolidated and tried at the same time.

The Plaintiff also applied for advance payment of costs in the Property Action in the amount of $50,000. The advance payment was to permit her “to properly advance the claim for family property division against the Defendant”. The Court noted that Rule 12.36 allows it to make any order that it thinks fit for the advance payment of costs.

Wenke J. clarified that the tripartite test in Okanagan Indian Band applies to advance payments of costs in family law cases, outlined as follows: (1) the party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case; (2) the claim must be prima facie of sufficient merit to warrant pursuit; and (3) there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of powers is appropriate.

Justice Wenke reviewed the case law that established that family law matters are one type of special circumstances but noted that this was not always the case. Typically, the special circumstances supporting advance payment of costs in family matters are the distribution of resources between the litigants and the obligation of support arising from their relationship. In respect of the second element, Justice Wenke noted that in family law cases, the sufficient merit test is presumptively satisfied. Because of the obligations of support and statutory presumptive equal division of family assets, a spouse seeking support or a property division will be presumptively successful, to some degree.

In applying the three-part test to the facts, the Court partially granted the Plaintiff’s claim for advance payment of costs. While the Court found the Plaintiff’s trust claim lacked merit, the unjust enrichment and family property claims had sufficient merit to warrant funding. The amount was limited to $8,000 due to the lack of a litigation plan and the need for proportionality. Interestingly, the Court commented that the quantification of advance payment of costs is aided if an applicant provides a litigation plan and a breakdown of costs to complete that plan.

The Court also noted that the assessment of security for costs is not confined to the claims made by an Applicant. A Court is entitled to consider claims supported by the record, as Rule 12.36 does not limit advance costs to specifically pleaded causes of action. The Court’s jurisdiction to address causes of action revealed by the record is supported by Section 8 of the Judicature Act and foundational Rule 1.3.

Further, the Defendant’s Application to strike the Property Action, pursuant to Rule 3.68, was dismissed, as the pleadings did not clearly disclose that the claim was statute-barred. The Court also dealt with a reference made during submissions to Rule 12.5(2). The Court found that since the proceedings were not brought under the Divorce Act, Rule 12.5(2) was inapplicable. Regardless of that point, the Defendant was a necessary party for resolving the property issues and therefore, properly a party to the present proceedings.