Michelle Kwan and Clay Pell: Paying Your Former Spouses Legal Fees

Olympic medalist Michelle Kwan is separating from her husband, Clay Pell, after their four-year marriage. As reported by the Daily Mail and TMZ, Clay filed for divorce, and is citing irreconcilable differences for the breakdown of the marriage. There is no word yet on whether or not Clay will be seeking spousal support from Michelle, who reportedly has a net worth of $16 million, nor the possible arrangements with respect to the division of property. However, Clay has reportedly made a claim that Michelle pay his legal fees.

In Ontario, pursuant to Rule 24(12) of the Family Law Rules, the Court has the authority to grant an Order that one party, typically the higher income earning spouse or the spouse with more assets, contribute to the other party’s costs of carrying on the litigation, which includes legal fees. These are referred to as interim disbursements. An Order for an interim disbursement may be for a portion of the costs for carrying on the case, or all of them.

In order to meet the legal standard for granting interim disbursements, there are several conditions that must be present. An Order for interim disbursements must be granted for the purposes of levelling the playing field between the parties. The party making the claim for an interim disbursement must establish:

1. Impecuniosity (which essentially means that the party is in need, and without any means to fund the costs of carrying the litigation);
2. there is a prima facie case of merit which warrants pursuing the case; and
3. that special circumstances exist to satisfy that Court that the exercise of the Court’s jurisdiction to grant the interim disbursements is appropriate in the circumstances.

In the case of Michelle and Clay, it remains to be seen whether or not Clay will be successful in his claim for interim disbursements. As noted above, in Ontario, there is a high standard to meet when making such a claim. Clay would need to establish that he does not have the means to fund the litigation on his own, and that his claims against Michelle are strong.