Calgary advance interim costs family lawyers help spouses fairly pursue their family law claims. In today’s blog, Peter Graburn of our Calgary family law office shows you how to obtain monies before your family trial to ensure you can hire an experieinced Calgary family lawyer to help you pursue your claim.
Advance Interim Costs in Alberta – “Leveling the Playing Field”
In Peter Graburn’s previous post on narcissistic and general bullying tactics in family law (“Dealing with Narcissists During Divorce” – ), he suggested it is important to respond forcefully to (and often bring your own) Court Applications to maintain your rights (i.e. financial disclosure, parenting, child and spousal support, matrimonial property, etc.) in the course of separation and divorce. But this protracted litigation can be expensive. How can one spouse with limited access to the couple’s financial resources keep up the legal battle with their litigious ex-spouse who has control of most (if not all) the family financial resources? Calgary Advance Interim Costs Family Lawyers explain that the answer is an award of Advance Interim Costs.
Calgary Advance Interim Costs Family Lawyers 403-444-5503
The origin of Advance Interim Costs is found in constitutional and Canadian Charter of Rights and Freedoms (“Charter”) litigation. In the ground-breaking case of B.C. vs. Okanagan Indian Bands [(2003) 3 S.C.R. 371] [and subsequent cases of Little Sisters Book & Art Emporium v. Canada (2007 SCC 2) and R. v. Caron (2011 SCC 5)], the Supreme Court of Canada recognized that to ensure access to justice in matters of public interest, the traditional rules regarding legal costs may be relaxed.
However, the Court confirmed that Advance Interim costs were an extraordinary remedy to be granted only in the exceptional circumstances of:
► Impecuniosity – the claimant cannot genuinely afford to pay for their case:
► Prima facie merit – the case must be legitimate and have a good chance of succeeding;
► Public Importance – the issues raised in the case must be of public (not merely individual) interest.
But these were all big government cases involving matters of public interest. What about private individuals caught up in litigious family law disputes – can they apply for Advance Interim Costs? Peter Graburn of our team of Calgary Advance Interim Costs Family Lawyers says-Absolutely!
In the recent landmark Alberta decision of Lakhoo vs. Lakhoo (2015 ABQB 357), a private litigant in a highly contentious family law case was successful in obtaining Advance Interim costs of $400,000.00 in order to fund her case. The couple, both in their mid-60s, separated after 15 years of marriage – she was primarily a homemaker; he, the head of a large commercial organization. They lived a comfortable lifestyle, and had accumulated significant assets (which he controlled). After 3 major Court appearances (including a trip to the Alberta Court of Appeal), Mrs. Lakhoo applied for Advance Interim costs under Rule 12.36 of the Alberta Rules of Court. Rule 12.36 allows the Court to “make any Order that it thinks fit for the advance payment of the costs of either party”. Justice Gates of the Alberta Court of Queen’s Bench, in applying Rule 12.36, found that the strict principles for awarding Advance Interim Costs set out in the Okanagan Indian Band (and other) cases was not appropriate in a family law situation, particularly where one party was at a severe financial disadvantage that may prevent their case from being put forward. In the Lakhoo situation, Mr. Lakhoo had approximately 100 times the financial resources that Mrs. Lakhoo did, and Mrs. Lakhoo needed an advance payment of costs to “level the playing field” to protect her interests and allow her to proceed and complete her case (at para. 65).
Calgary Advance Interim Costs Family Lawyers
Calgary Advance Interim Costs Family Lawyers know that costs awarded in the course of litigation are always discretionary – Judges can award costs not only to compensate the successful party for some of their financial outlay in the case, but also to encourage (or discourage) certain conduct in the litigation (ie. settlement, frivolous and vexatious actions or defences, unnecessary applications, etc.).
Advance Interim Costs awarded in family law litigation are a highly creative way to allow a financially disadvantaged party to participate equally in the (often highly contentious) litigation, to “level the playing field” and not let one party (particularly in a high net financial worth situation) dominate or take advantage of the litigation to the detriment of the other party. But they are an extraordinary remedy that is not available in all cases.
Calgary Advance Interim Costs Family Lawyers can assist their clients prepare for and navigate their way through the very special circumstances required to be demonstrated to make these applications successful. By doing this, Calgary Advance Costs Application Lawyers can assist their clients combat the often “delay-at-all-costs”, “scorched –earth” tactics of their often severely economically-advantaged ex-spouse, and give their clients hope of economic equality to be able to afford to continue the legal battle with their ex-spouse.
