Funding Family Law Litigation

Summary Trials

BC Family Law Litigation & Help Paying

There is no way around the fact that litigation is expensive and family law litigation is no exception to this. In family law disputes, there can be a further level of complexity when one side has substantially more assets than the other and thus the ability to fund the litigation. The legislature has tried to remedy this through the introduction of s. 89 of the Family Law Act which provides a tool for parties in need of funding to ask the court for an interim distribution to fund litigation.

Ruling to Help Fund the Litigation

S. 89 of the FLA was recently by the Court in Bartch v. Bartch, 2017 BCSC 210, wherein Mr. Justice Weatherill granted an interim distribution to the respondent to help fund the litigation. The extra complexity in this case specifically was that the parties had a separation agreement in place which the Respondent was seeking to set aside. The Court considered the arguments and made the following comments:

[25]  Mr. Tretiak argues that what sets the instant case apart from the s. 89 cases to which the respondent has referred is the fact of the Separation Agreement which the claimant says is binding. The respondent argues that he has demonstrated a reasonable prospect of success in impeaching the Separation Agreement and having it set aside. Whether or not he will be successful in the case remains to be seen and, of course, will be determined after the trial proper. The evidence I have reviewed suggests that the Separation Agreement was treated as an agreement to agree and / or an agreement in  principle. Regardless, the respondent says he relied on his misunderstanding of BMC’s financial state to his detriment in the preparation and signing of the Separation agreement.

[26]  On consideration of the evidence and counsel’s helpful submissions, I am in agreement with Mr. Polley that the respondent has demonstrated the need for an interim         distribution and that one is required to adequately mount a challenge to the claimant’s  position at trial and indeed her position pre-trial. I am satisfied that the respondent, rightly or wrongly, does not have sufficient financial wherewithal to fund this litigation, the necessary expert reports, and the appeal. In that regard, I do not agree with Mr. Tretiak’s assertion that, because Mr. Polley has represented the respondent and Mr. Spence has continued to be involved as an expert without their accounts being paid or kept current, money is not needed. The respondent has no income and no way to fund these proceedings. The playing field is not financially equal. There is an extreme imbalance of financial power.

[27] Nor do I agree that the claimant will be prejudiced if an interim distribution order is made. I am satisfied that the claimant’s company, through which she appears to run most, if not all, of her personal expenses including legal expenses related to this claim, can easily afford an advance. The claimant owns a company with significant wealth and income. She has no debt. The NuCerity business has a very impressive cash flow. The company has amassed a net worth of approximately $1.6 million.

Related BC Family Law Information

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If you have a family law dispute, contact the Kushner Law Group today at 604-629-0432 to schedule a consultation.

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