The Court’s Discretion – Advance/Interim Costs

Aida Rafie
The Alberta decision of Lakhoo v. Lakhoo 2015 ABQB 357 is a recent example of the Court’s application of Rule 12.36 of the Alberta Rules of Court, allowing the court to use its discretion in making any order it sees as fit for an advance payment of costs of either party.

In the Lakhoo case, the Applicant wife had separated after 15 years of marriage and were both in their mid 60’s. While the Wife had been employed as a pharmacist prior to the marriage, she had not worked outside the home for some time. In contrast, the Husband was president and CEO of a successful commercial empire, allowing the parties to lead a comfortable lifestyle.

The issue in the case above had to do with support and the Husband’s resistance to provide disclosure based on his position that there existed a pre-nuptial agreement that made assets exempt from distribution upon the breakdown of the parties’ marriage. The Wife was challenging this position, arguing the agreement was not valid, as well as the fact that the Husband had recently placed assets in a charitable trust. Husband also appeared to have income of $800,000.00/year and an estimated net worth of $70 million.

After various appeals, and $376,000.00 spent by the Wife, the Husband was ordered by the Court to pay $25,000.00/month in retroactive and ongoing interim spousal support, as well as $400,000.00 in advance/interim costs to the Wife.

While this decision by the Court’s to make the order above, and exercise its discretion in doing so, was a fact specific inquiry and dependant on changing circumstances, it is a further example of the court’s power to maintain balance and fairness in family litigation. While the Wife had some $700,000.00 in cash and investments, given the Husband’s income and net worth as stated above, an advance was clearly appropriate in order to ensure her litigation interests were protected.