If You Don't Ask, You Don't GetNegus v Yehia, 2018 BCSC 3 (CanLII)
It is open season on spouses who own substantial assets, now that s. 89 of the Family Law Act has found its footing in British Columbia jurisprudence.
S. 89 permits a spouse to apply for an “interim distribution” of family property prior to a final division of property where a spouse needs money to settle or litigate the family case, or funds to obtain information and evidence that will assist them to settle or litigate their case.
Prior to the introduction of this section, litigants without access to ready cash were severely prejudiced, often unable to retain counsel or hire accountants and other experts required to prove their case. Longtime case law prevented any distribution of property in order to retain counsel.
Cases now abound and large amounts of money have been ordered to be paid by property owning spouses. In some cases, these spouses have been ordered to mortgage their property or otherwise borrow funds to pay their less well-financed spouses. It is not unusual to see orders of six figures, no small-time amounts.
However, all of the current cases recognize that this financial remedy is restricted to applications for funds prior to trial. Until today, that is.
In Negus v. Yehia, 2018 BCSC 3, a high-conflict case where Ms. Negus has already received $533,500.00 pursuant to S. 89, her counsel had the temerity, on the last day of trial, to make yet another application for funds. She advised the court that her client owed $400,000 in legal fees and sought another interim distribution.
The court judiciously refused the request saying:
“While I have been referred to a number of cases where the court has ordered advances under s. 89, all of those orders were made before trial in order to permit the economically weaker spouse to prepare for and conduct a trial. That has included, where necessary, putting that spouse in a position to pay for expert evidence. The focus is on the fairness of the trial process and the ability of both spouses to effectively put forward all relevant evidence. I have been referred to no case where such an order was made during or after trial.
In this case, I find that the purpose of s. 89 has been achieved, presumably with the help of the advances already ordered. There has already been a trial in which the “playing field” was clearly level and the claimant, with the assistance of experienced family law counsel, was able to vigorously challenge the respondent’s position.
An additional advance at this stage would do nothing further to meet the objectives of s. 89.”
I guess if you don’t ask, you don’t get, but this one took chutzpah!