In a case from Ontario, the Claimant wife applied to the court for an order that her husband provide her with funds to pay for her lawyer and other legal expenses arising from the parties’ family law action. (Ord v. Ord, 2019 ONSC 1563)
The evidence disclosed that since the date of separation Ms. Ord had spent most of her only asset, a $218,500 RRSP on moving expenses, living expenses, withholding tax on the withdrawal of RRSP funds, and the purchase of furniture and a new car; a sum amounting to approximately $150,000. At the time of her application she said she had only $15,000 left.
She asked the court to order her husband pay her the sum of $150,000 as an interim advance, which she broke down as follows:
Disclosure Motions/Motion for Disclosure $7,500
Motion for Interim Support $5,000
Settlement Conference $5,000
Trial Management Conference $10,000
10 day trial $100,000
The Court remarked that to succeed the wife must prove impecuniosity and justify the advance she requests. The Court must also be satisfied that its award is not a “free license to litigate”, particularly where there is no requirement that she be in a position to repay the funds if unsuccessful at trial.
Counsel for the husband argued that his client’s wife had squandered her RRSP and that it was her fault that she had no funds to pay her lawyer, but the Court was not receptive to that argument stating that the wife had left the marriage after signing an agreement that she would not receive any share of family property or spousal support. The Court stated:
“However, I also find that Mr. Winnitoy’s suggestion that the Applicant “squandered” her funds to be less than helpful. The money that she has spent on her living expenses, her move to Alberta and to furnish her apartment and purchase a vehicle are expenditures about which she had little choice. What else was she to do when she had determined that she would leave the marriage and had signed an agreement three weeks previously which gave her nothing? Was Mr. Winnitoy suggesting that the Applicant go onto public assistance and enter public housing and thereby preserve that asset? I note that it is questionable that she could have received public assistance when she had an asset of more than $200,000.”
Calculating the funds she had, what she spent, and what should have been left over, the Court queried where the remaining funds were, and was advised that she had already spent $70,000 on legal fees and disbursements to date. The Court noted that the proceedings thus far consisted of one case conference and the present application before the Court, and declared the fees excessive.
Counsel for the wife advised the judge that a significant portion of the fees to date was spent reviewing nine volumes of documents provided by the respondent husband. The Court was not impressed, noting that the first hurdle for the wife was to persuade the Court of the invalidity of an amending agreement to the parties’ marriage agreement, which argument would consume 5 of the 10 days scheduled for a bifurcated trial. If she succeeded there would be 5 additional days of trial at a later date. It was only if she succeeded that the documents would be relevant.
The Court held that the first portion of the trial should not take more than three or four days, and that a disclosure application was unnecessary. The Court agreed that she would need to seek spousal support but that was the only pretrial application that would be required. Having reviewed the numbers the Court ordered a payment of $40,000 to the wife to be paid from the husband’s $1 million dollars of RRSP’s.
Lawdiva aka Georgialee Lang