By Laurie Stephen of Kirk Montoute LLP posted in Family Law on Wednesday, August 21, 2013.
In Family Law, division of matrimonial property often involves protracted litigation. In certain circumstances a party can apply to the courts to have an interim advance of funds made to them from the matrimonial property prior to an order or agreement setting out the final division of the matrimonial property. Whether or not the court will allow an advance of funds is highly discretionary, meaning the Judge hearing the matter will look at the facts of the case and determine whether he/she thinks that it is wise or fair to allowan advance of funds from the matrimonial property. Some of the factors the Judge will consider include:
· the income of both parties;
· the pace of the litigation;
· which party paid previous joint legal expenses.
The total value of the matrimonial property and the fact that the party making the application is most likely entitled to a certain share of the matrimonial property do not seem to be decisive factors in allowing an advance of matrimonial property.
Case law from the Supreme Court of Canada and the Alberta Court of Appeal suggest that a Judge would be more likely to allow an advance of funds to pay for certain expenses that have been incurred by a party, such as:
· assisting in finding accommodation
· paying for a child’s post-secondary schooling costs;
· paying for the maintenance costs of the matrimonial home.
Something the Judge is less likely to allow is an advance of funds for the sole purpose of paying future legal expenses, as an advance of funds from the matrimonial property is not intended to act as “fuel to generate more litigation”. The circumstances in which a Judge would be likely to award an advance of funds from the matrimonial property for the sole purpose of paying future legal expenses would be a “rare and exceptional” case where all other options for funding legal expenses have been explored, including legal aid or other assistance programs along with attempts to obtain private funding.
Contact the lawyers at Kirk Montoute LLP for advice and representation if you are faced with an application or wish to apply for an advance of matrimonial property.
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