Motions for advance litigation costs require detailed evidence
A recent Ontario Superior Court decision dealing with interim costs, disbursements and alleged abuse of process in a matrimonial financial dispute, shows the detailed evidence a court will demand on motions for advance litigation costs, says Toronto family lawyer Gary Joseph, managing partner of MacDonald & Partners LLP.
The parties in the case, L.L. and B.L., separated in 2005 after a twenty-year marriage.
This motion marked the third time the applicant wife moved for interim costs or sale of the matrimonial home, this time seeking an order for $300,000 in interim costs, or alternatively, the sale of the matrimonial home, with one of the central issues being the husband’s ability to look to part of a family trust as part of his ability to pay support.
The order, she says, would permit her to place a $300,000 mortgage on the home to raise funds in order to “level the playing field” so she can continue with the litigation and her lawyers will remain on the record, according to Justice Ruth Mesbur’s endorsement.
Joseph’s client, the husband, took the position that the issues were res judicata or that issue estoppel applies to prevent what he characterized as an abuse of the court’s process. He also said that the wife has failed to meet her evidentiary burden to meet the minimum fact threshold.
According to the endorsement, the court was not satisfied that the wife provided any additional evidence to show her case has more merit now than when she argued the interim costs issue in 2008. Mesbur ultimately dismissed the wife’s claim for interim costs, noting that she “failed to provide the necessary material she was ordered to produce.” The court also found that the husband “has no ability to access funds from the trust.”
Ultimately, the principles of fairness enshrined in the Family Law Rules apply to both parties in the dispute and constitute an overarching consideration for this type of motion, explains Joseph.
This case is significant, he says, as it demonstrates that the court will not revisit prior interim decisions even after the lengthy passage of time, as experienced in this case, unless the moving party can demonstrate, “a significant change in the legal landscape.”
“There is a higher evidentiary burden on a moving party when a prior interim motion on the same issue has been considered and determined,” he adds.
It also demonstrates the extent of detailed evidence a court will demand on motions for advance litigation costs, as well as the care with which the court will examine that evidence.
“It is not just, ‘You have money, and I don’t, so pay up,’” says Joseph.
