Burrows J

12.36: Advance payment of costs

Case Summary

The Applicant made an Application for an Order that her ex-husband provide updated financial disclosure and pay $20,000 in advance Costs, pursuant to Rule 12.36.

Burrows J. explained that a Court should consider several factors in deciding whether to order advance Costs under Rule 12.36, including that advance Costs should only be ordered where (a) the party seeking the order is impecunious such that he or she would not be able to proceed with the case without the order; (b) the party seeking the order has demonstrated sufficient merit on a prima facie basis; and (c) the Court is satisfied that special circumstances exist to warrant the extraordinary power of ordering Costs in advance.

Burrows J. found that the Applicant was impecunious, as her only source of income was spousal support from the Respondent. His Lordship also found that on its face, there was a real issue as to whether the Applicant was entitled to any further division of matrimonial property or additional spousal support. As such, there was prima facie sufficient merit to her claim. Lastly, Burrows J. found that there were special circumstances to warrant advance Costs, because the Applicant had frustrated the progress of the Action on several occasions, and had paid Costs as a result. The Applicant’s own actions had caused her to be unable to continue the litigation, but Burrows J. determined that justice required that the litigation be concluded, and the Applicant required payment of advance Costs so that this could be achieved.

Burrows J. ordered the Respondent to pay advance Costs to the Applicant. It was also ordered that should the Applicant be required to repay the Respondent after Trial, the Respondents’ obligation to pay spousal support would be reduced by half until the amount of the advance Costs was repaid.

View CanLII Details