Breaking up is expensive, particularly when parties resort to litigation. It is not uncommon for large disparities in parties’ financial means to frustrate the division of matrimonial property. For example, one party may initiate proceedings and be ready to move the matter forward while the other party does not have the finances to advance his or her side of the litigation.
In response to this common issue, the Alberta Rules of Court allow for an interim distribution of matrimonial assets, called “advance costs”. Pursuant to Rule 12.36, the court has discretion to make any order it deems fit for the advance payment of costs for either party. The purpose of awarding advance costs is to “level the playing field” between the parties, so the proceedings can move forward in a fair and efficient manner: McDonald v. McDonald 1998 ABCA 241 at para. 36.
The test to be met for an order of advanced costs is as follows (McMann v. McMann 2018 ABQB 378 at para 2):
1. The party seeking the award must be impecunious (impoverished) to the extent that without such an order they would be deprived of the opportunity to proceed with the case (for example, a spouse who has no access to income or matrimonial assets);
2. The claimant must establish a prima facie case of sufficient merit to warrant pursuit (an example of sufficient merit would be that you are a spouse involved in a matrimonial property action); and
3. Special circumstances must exist (an example of special circumstances may be a substantiated concern that the other spouse is dissipating matrimonial assets).
The court considers each application for advanced costs on an individual basis and if appropriate, will order an award based on the circumstances of the parties: Lakhoo v. Lakhoo 2015 ABQB 357. It is important to note, any advance costs a party receives are typically deducted against his or her final share of the division of matrimonial property at the resolution of the proceedings.
Alberta Rules of Court 12.36
McDonald v. McDonald 1998 ABCA 241
Nutbrown v. Corbell 2018 ABCA 107
McMann v. McMann 2018 ABQB 378
Lakhoo v. Lakhoo 2015 ABWB
Written by Suzanne Fleming