Can You Make the Other Side Pay Your Legal Fees in Advance?

A Guide to Interim Disbursements in Ontario Family Law

Family law cases in Ontario can get expensive fast — especially when they involve complex property issues, disputes over income, or the need for expert reports. When one spouse controls most of the financial resources, the other may simply run out of money before they can properly advance their case. Ontario courts have a tool to address this problem: the interim disbursement order.

An interim disbursement order requires one party to fund the other party’s legal expenses during the case, before any final decision has been made. The goal is to make sure both spouses can actually participate in the litigation on something close to a level playing field.

Where the Court Gets Its Authority

The power to order interim disbursements comes from Rule 24(18) of the Family Law Rules, O. Reg. 114/99, which allows a court to order one party to pay another “to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.”

That language is deliberately broad. It recognizes that the default rule — each party pays their own legal bills — can produce unfair outcomes when one side controls the money. Interim disbursement orders are closely related to costs in family law generally, but they are distinct in one key way: they are made during the case to allow it to move forward, not at the end based on the outcome.

The Family Law Act allows advances in certain situations, such as on equalization under s. 9, but those are different. Those orders deal with substantive entitlements. Interim disbursements deal with funding the litigation itself.

Why the Rule Exists

When one spouse can afford counsel, expert reports, and a full litigation team while the other cannot, there is a real risk that meritorious claims get abandoned or settled for far less than they are worth — not on their merits, but because one party simply ran out of money.

Courts take this seriously. Without interim disbursement orders, family law would risk becoming a system where outcomes are determined by financial firepower rather than the strength of the case. At the same time, because these orders effectively require one party to fund the other’s lawsuit, courts apply the test carefully and demand a strong evidentiary record.

The Legal Test

The leading Ontario case is Stuart v. Stuart, 2001 CanLII 28261 (ON SC), which pulled together the existing case law into a workable framework. The principles from Stuart continue to drive the analysis today.

To succeed on a motion for interim disbursements, the moving party generally must show:

1. Inability to proceed without an advance. Without the funding, they cannot adequately pursue or defend their case.
2. Necessity and reasonableness. The disbursements sought must be genuinely needed for the issues in dispute. Speculative or inflated requests will not succeed.
3. A meritorious claim. The underlying claims must be at least prima facie meritorious — though the court does not assess ultimate success at this stage.
4. Capacity of the responding party. The court will consider whether the responding party can pay without suffering undue hardship.

Earlier decisions sometimes described interim disbursements as exceptional. That language has largely fallen away. Courts now take a more flexible approach, focused on fairness rather than rigid categories.

More recent cases such as Fiorellino-Di Poce v. Di Poce, 2019 ONSC 7074, have restated the test in slightly tighter form: the moving party must show the disbursements are important, reasonable, and necessary; that they cannot fund them independently; that the claims have merit; and that the order will not cause undue hardship to the payor.

How the Test Plays Out in Practice

Where interim disbursements have been granted

In Hrvic v. Hrvic, 2023 ONSC 6429, a wife sought funding to continue litigating against her higher-earning husband. The court declined to order an advance on equalization — entitlement was too uncertain — but granted a substantial interim disbursement so she could keep her case moving. The decision shows the court’s willingness to step in where there is a clear financial imbalance and a real need for funding.

In Fiorellino-Di Poce, the wife needed money for legal fees and expert reports, including business valuation and income analysis. The court accepted that the husband’s financial picture was complex, that expert evidence was essential to properly evaluate the case, and that she could not fund it on her own. That combination justified the order.

Bagheri-Sadr v. Yaghoub-Azari, 2011 ONSC 611, illustrates how interim disbursement motions often travel together with disputes about financial disclosure and credibility. Where one party controls the financial information or has superior access to records, courts may be more willing to fund the other party so those issues can be properly tested.

Where the court said no

Vargas-Hernandez v. Graff-Guerrero, 2024 ONSC 4164, shows the limits of the doctrine. The applicant sought either an advance on equalization or interim disbursements. The court refused, finding that — given prior advances, ongoing support payments, and discretionary spending — there was no genuine financial need. The case is a reminder that interim disbursements are not automatic. The moving party has to put forward clear, detailed evidence of both need and reasonableness.

Practical Considerations

Motions for interim disbursements live or die on the evidence. Courts expect a detailed breakdown of what is being asked for, including budgets or estimates for legal fees and expert costs. A vague request without supporting documentation is likely to be cut down or refused outright.

Financial disclosure also matters enormously. Where the responding party has failed to provide full disclosure, or where their financial affairs are complex or opaque, courts tend to be more receptive — particularly when the requested funding is for expert assistance that will help unpack those finances.

That said, courts are alert to the risk that these orders could fuel excessive litigation. An interim disbursement is meant to enable fair participation, not write a blank cheque. Proportionality matters. Requests need to be tailored to what the case actually requires.

Strategic Implications and Sufficiency of Quantum of Orders

An order for interim disbursements creates a different dynamic in many cases. The party ordered to pay finds themselves in the unenviable position of not only paying their own legal fees, but paying the legal fees of the opposing party as well. This generally acts as significant leverage in persuading the paying party to resolve the matter, since they are responsible on an ongoing basis for all costs going forward.

Also important is the fact that these kinds of orders are generally not sufficient to fund the litigation all the way through, and frequently have to be requested more than once. Sometimes many times. And the requests themselves — made by motion to the court — are not cheap to bring.

Conclusion

Interim disbursements are an important access-to-justice tool in Ontario family law. They allow the court to level the playing field when one spouse controls most of the financial resources, while still respecting the general principle that parties pay their own legal costs.

Courts will grant these orders where the evidentiary record supports them. They will also refuse where it does not. Success on a motion for interim disbursements depends on careful preparation: clear evidence of financial need, a credible accounting of the expenses being sought, and a demonstration that the underlying claims have merit.

If you are considering bringing a motion for interim disbursements, or have been served with one, contact us at SD&A to find out how we can help.