MM. Interim Costs and Disbursements

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 569-571

Evidence; Procedure; Costs 569

KK. FIXED COSTS

Erosion of a child support order by a judicial disposition as to costs may be avoided by

f‌ixing costs and deferring payment thereof until the last child is no longer a “child of the

marriage” within t he meaning of the Divorce Act.232 In these circumstances, the court may

order interest to accrue on unpaid costs after sixty days from the date when the payment

becomes due.233

A court may refuse to f‌ix signif‌icant costs in favour of a successful applicant due to

complexities and uncertainties under the Federal Child Support Guidelines234 but litigants

who unjustif‌iably refuse to accept their ch ild support obligations under the Divorce Act and

the guidelines must expec t to have costs ordered against them.235

LL. SECURITY FOR COSTS

Where a husband in default of his chi ld support obligation sought security for costs against

the wife, who was seeking to enforce the support obligation, Galligan J., of the Ontario Su-

preme Court, stated:

In any event it is unseem ly indeed to require a woman who holds a foreign judgment aga inst

her husband or former husband for arrear s of alimony to pay security for costs in order to

seek to enforce that judgment in our courts. ere is another matter that I consider most

signif‌icant in this case and it is this: the endorsement also i ndicates that the foreign judg-

ment is for arrears of child suppor t. I think that it would be most unwi se if this court were

to permit the requirement of security for costs to be used to prevent or hinder a mother

from enforcing the obligation of a father to support his child. I do not think that such an

obstacle ought to be put in her path to the a ssistance of the courts of th is province.236

MM. INTERIM COSTS AND DISBURSEMENTS

An order for interim disbursements and costs is not conf‌ined to property equalization

claims. Such an order may be granted w ith respect to an application for child support where

the parent against whom an order is sought has complex f‌inancial af‌fairs. e discretion

conferred by Rule 24(12) of the Ontario Family Law Rules is broader than the equitable

jurisdiction set out in British Columbia (Minister of Forests) v. Okanagan Indian Band,237

wherein the Supreme Court of Canada outlined the following conditions that must be

present for an interim costs or disbursements order to be granted:

1. e party seeking the order must be impecunious to the extent that, without such an

order that party would be deprived of the opportun ity to proceed with the case.

2. e applicant must establi sh a prima facie case of suf‌f‌icient merit to warrant pursuit.

232 Scotcher v. Hampson, [1998] O.J. No. 4002 (Gen. Div.).

233 Ibid.

234 Reid-Floyd v. Kell y, [1998] N.B.J. No. 19 (Q.B.).

235 Smith v. Stebbings, [1997] O.J. No. 5400 (Gen. Div.); see also Hughes v. Bourdon, [1997] O.J. No. 5398 (Gen.

Div.).

236 Mahrer v. Mahrer (1976), 26 R.F.L. 328 at 330 (Ont. H.C.J.).

237 [2003] 3 S.C.R. 371.