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What if I cannot afford matrimonial litigation?

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What if I cannot afford matrimonial litigation?

Let’s face it: matrimonial litigation is expensive.  There is a general rule that each party pays their own legal fees until proceedings are over, at which point the court decides whether any retroactive reimbursement for costs (not ordered at an interim stage) is appropriate.  That can be a tough pill to swallow, and it can take a long time before a case is finished. Often, one party owns far more and earns far more than the other party. How can the poorer party possible carry on the case? Fear not, there are 2 possible options:

Interim disbursements: The Family Law Rules allows the court to order that a party pay money to the opposing party to cover part or all of the expenses of carrying on the case, including legal fees. However, mere inability or hardship paying one’s own legal fees alone does not make you a candidate for such an order.  The foundational rationale behind interim disbursements is the court’s duty to ensure a fair procedure. This means that both parties should be able to request and give disclosure and to “unpack” complex valuation issues on an equal footing.  Both parties need to be able to “test” the evidence offered by the other party. Before making such an discretionary order, the party asking much demonstrate that without the money, they CANNOT present or analyze settlement offers or pursue entitlement. Other considerations include the particularized and detailed expenditure being necessary (not a fishing trip), a meritorious claim or defence, and the money is needed to level the playing field.  In the past, interim disbursements were ordered in exceptional cases only. The tide has turned a little, and orders are made more often now, but only where the money is necessary to ensure a level playing field.  It is a good idea to show the court that despite reasonable steps to finance the litigation on your own (i.e. using the money you have access to) a party is still unable to proceed without the advance of funds. Interim disbursements have often been permitted where the payment can be characterized as an advance to the party who appears likely to receive an equalization payment, but a pending equalization entitlement is not a pre-requisite to interim disbursements. 

Advance on Equalization:  First, we need to define an Equalization Payment (“EP”).  It is a payment that the spouse with the higher net worth makes to the spouse with the lower net worth.  That said, it is important to understand that there are various deductions and exclusions that get factored into the determination of the EP. When a party requests an Advance on Equalization, the court carefully considers these 3 factors: (1) the requesting party has a REASONABLE requirement for the funds before the case is over; (2) there is little doubt that the requesting party will receive an equalization of AT LEAST that amount; and (3) it is “just” in the circumstances to make such an order. Factor #3 provides the court with discretion, so before you consider making this “ask” be sure that you are coming to court with clean hands.   

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