We recently received a request from Nathalie asking if it is possible, in her divorce proceedings, to ask that her husband to pay for her legal fees, seeing that she is not working.
Articles 502 and 588 of the Civil Code of Quebec provide that the court has discretion to allow one spouse to pay to the other a provisional sum to cover the “cost of the proceedings”.
How the Courts Determine the Need for Provision for Costs
Over the years, there has been much case law and many decisions rendered in regard to the provision for costs. For a provision for costs to be ordered, the jurisprudence has established several key factors that must be put forth, namely: the judge will look at the means of each party, in that the party requesting the provision for costs does not have the means to pay for the legal fees and that the other party has the capacity to assume the said provision for costs.
The nature and the importance of the file are important elements that the courts will take into consideration. For example: child custody; establishment of child support and/or spousal support; and the protection of the rights and the interests of the children are the primary cases where a provision for costs may be granted.
The provision for costs will generally be granted when there is a great disparity in the incomes of the parties.
Judges frown upon one party using or asking for a provision for costs in order to lengthen or encourage a legal battle in front of the courts.
In fact, on several occasions, the courts have refused provisions for cost when it is evident that a party refuses to settle in order to maintain the request for provision for costs.
It is important - when requesting a provision for costs - that the request be made at the beginning of the file, in the initial proceedings.
As every file and every case is different, it is important to speak with a lawyer in order to obtain the necessary information that will be pertinent to your situation.
Gianina Fuschini, Attorney-at-Law
Alepin Gauthier avocats inc.