PIATRASHKA v KAZACHENKO, 2026 ABKB 665

The Plaintiff in a family law Action sought $70,000 in Advance Costs pursuant to Rule 12.36 or, alternatively, an interim distribution of family property. The Court decided the Application on the existing evidence because the parties submitted the issue by consent.

Rule 12.36 authorizes the Court, in addition to an Order pursuant to Rule 4.22, to make any appropriate Order for Advance Costs. Justice Loparco applied the three-part test from British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, through the family law principles in McDonald v McDonald, 1998 ABCA 241. The Plaintiff had to establish an inability to fund the litigation, sufficient prima facie merit, and special circumstances.

The Court found that the Plaintiff could not meet basic living expenses and finance the Action. The Plaintiff had limited liquid assets, significant debt, modest income, and no meaningful access to readily saleable family property. The parenting, spousal support, and family property claims had sufficient prima facie merit. Special circumstances arose from the unresolved claims, the parties’ significant financial disparity, the Defendant’s control over most family and corporate assets, and the Plaintiff’s resulting inability to participate meaningfully in the litigation.

The Court awarded $50,000 in Advance Costs pursuant to Rule 12.36. The requested $70,000 was unsupported by a detailed litigation budget. The Court directed that the Award be paid into the Plaintiff’s counsel’s trust account and only be used for legal fees and disbursements. Further, Loparco J. advised the parties that the $50,000 and remained subject to accounting and final characterization or set-off. Alternatively, the Court would have authorized the same amount as an interim advance against the Plaintiff’s family property entitlement.