Provision for Costs

1. The Applicable Legislative Framework

Under Quebec law, several legislative provisions allow for the awarding of a provision for costs, although their application varies depending on the context.

In family matters, section 416 of the Code of Civil Procedure (C.C.P.) expressly provides that:

“The court may order one party to pay the other a provision for the costs of the proceeding if the circumstances warrant it, particularly if it finds that without such assistance that party’s financial circumstances would likely prevent him or her from adequately presenting his or her position.”

This provision applies exclusively to family matters.²

On the other hand, section 53(5) C.C.P. provides for the possibility of seeking a provision for costs in cases of procedural abuse.³

Section 588 of the Civil Code of Québec also provides:

“The court may award provisional support to the creditor of support for the duration of the proceeding. It may also award the creditor of support a provision for the costs of the proceeding.”

Finally, sections 9 and 49 C.C.P. play a complementary role, as they recognize the court’s inherent powers and its responsibility for the proper management of proceedings.

The coexistence of these various legal bases demonstrates that a provision for costs is not a uniform mechanism; its application varies depending on the nature of the dispute.

2. Criteria for Awarding a Provision for Costs in Family Law

Although the legislation authorizes the awarding of a provision for costs, the applicable criteria have primarily been developed by the courts. In Droit de la famille — 211578, the Court reiterates the following criteria:⁴

1. The applicant’s need for a provision for costs, with financial necessity or lack of means being the primary consideration.
2. The needs and financial means of the party requesting it.
3. The parties’ respective financial resources and any substantial disparity between them, which is considered one of the most important criteria.
4. The nature, complexity and importance of the dispute.
5. The protection of children’s rights or the existence of a claim relating to support.
6. The respective conduct of the parties.

These criteria were recently reiterated in Droit de la famille — 25562.⁶

However, the case law makes clear that these factors do not constitute a rigid checklist. The analysis remains discretionary and contextual. In Liv Chamma v. Pellicano De Oliveira, the Court reiterates that the awarding of a provision for costs falls within the court’s discretion.⁷⁸⁹

The burden of proof rests with the applicant, who must present specific facts rather than mere general allegations.¹⁰

Furthermore, the Court emphasizes the importance of considering the purpose of the proceedings. Where they are intended, in whole or in part, to protect or enforce children’s support rights, this consideration may weigh heavily in favour of awarding a provision for costs. It would be inequitable for the economically more vulnerable party to bear all the legal costs associated with protecting the children’s interests.¹¹

Lastly, the case law recognizes that a significant disparity between the parties’ financial resources is one of the most determinative factors in the analysis. Where such economic inequality is established, particularly where the proceedings also seek to protect children’s rights, the combination of these factors strongly favours court intervention and the awarding of a provision for costs.¹²

3. The Significant Influence of the Parties’ Conduct

The parties’ conduct during the proceedings plays a crucial role in the court’s assessment. Although economic disparity between the parties is an important factor, it is not the only one. A provision for costs may be ordered because a party’s conduct has a direct impact on the costs generated by the litigation, particularly where that conduct unnecessarily complicates or prolongs the proceedings.¹³¹⁴

This principle was reiterated in Droit de la famille — 202119, where the Court emphasized that courts pay particular attention to a party’s rigidity, bad faith or lack of realism.¹⁵¹⁶

The court may consider, among other things, obstructive conduct, such as refusing to disclose one’s true financial situation and thereby forcing the other party to undertake additional steps, including subpoenas and requests for documentation, as well as the unjustified multiplication of proceedings or the unnecessary prolongation of hearings.¹⁷

This consideration of the parties’ conduct is particularly significant in cases of procedural abuse. The court may award a provision for costs where it is faced with procedural abuse under sections 51 et seq. C.C.P. These provisions authorize the court to declare a legal claim or procedural act abusive, even on its own initiative. Abuse may arise from proceedings that are clearly unfounded, frivolous or dilatory, from vexatious or quarrelsome conduct, or from an excessive, unreasonable or improper use of judicial procedures. Once it is summarily established that a procedural act may be abusive, the burden shifts to its author to demonstrate that the rights were not exercised excessively or unreasonably and that the proceeding is justified in law.¹⁸

Among the available sanctions, section 53(5) C.C.P. allows the court, among other things, to order the payment of a provision for costs. However, such an order may only be made after abuse has been established. The case law nevertheless emphasizes that a finding of abuse should not be made lightly. In Biron v. 150 Marchand Holdings Inc., the Court of Appeal noted that section 51 C.C.P. encompasses a wide variety of situations, but that the threshold for abuse must remain particularly high so as to avoid trivializing the concept and impeding access to justice. Proceedings that are clearly unfounded or instituted solely to silence a party must certainly be sanctioned; however, the abusive nature of a proceeding cannot be presumed and requires compelling evidence.¹⁹²⁰²¹

The message emerging from the case law is clear: procedural conduct that unnecessarily burdens the proceedings may weigh in favour of awarding a provision for costs.

4. Non-Support Claims

Beyond considerations relating to the parties’ procedural conduct, the courts have also been called upon to clarify the scope of the provision for costs mechanism, particularly with respect to its application to claims that are not support-related.

Historically, some argued that provisions for costs should be limited to support-related disputes. This approach, however, has been rejected.²²

In L.G. v. R.M., the Court adopted a broad interpretation of article 588 C.C.Q. and held that a provision for costs may be awarded even where the right being exercised is not support-related, provided that it is connected with marriage, separation, child custody or other related family matters.²³²⁴

Quoting Justice Mongeon, the Court emphasized that article 588 C.C.Q. merely specifies that, in support matters, provisional support and a provision for costs may be sought; it does not preclude such relief from being sought in other types of proceedings falling within the context of family litigation. The concept of a “proceeding” must therefore be interpreted broadly as encompassing all disputes relating to divorce, separation or family relationships, rather than being restricted to strictly support-related proceedings.²⁵

This reasoning is also reinforced by article 502 C.C.Q., applicable to separation from bed and board, which essentially adopts the same approach. Furthermore, the rules of practice applicable in family matters allow the court, at any stage of the proceedings, to order the payment of a provision for costs without distinguishing between the support-related, patrimonial or economic nature of the claim.²⁶

The Court therefore concluded that articles 502 and 588 C.C.Q. should not be interpreted as limiting provisions for costs solely to support proceedings. Rather, these provisions reaffirm that such relief may be granted in that context without excluding its application to claims relating to marriage, separation or other non-support family disputes, particularly where those claims may affect support obligations ultimately determined by the court.²⁷

Moreover, the Court draws an important distinction between the support-related nature of the provision for costs itself and the nature of the right that it enables a party to exercise. Although the amount awarded may be treated as a support claim, the proceeding being funded need not itself concern support. It may involve child custody, filiation, separation or other related family-law issues. A contrary interpretation would lead to inconsistent results, as it could deprive a party of access to justice in fundamental family disputes merely because the support issue had already been resolved.²⁸

This interpretation was subsequently reiterated in Droit de la famille — 202119, where the Court confirmed that a provision for costs may be awarded in a dispute that is not support-related.²⁹

Accordingly, the characterization of a provision for costs as support-related does not necessarily restrict the nature of the underlying proceeding.

5. Beyond Family Law

Outside the family-law context, the awarding of a provision for costs remains considerably more exceptional.

In Okanagan Indian Band, recently considered again in Attorney General of Quebec v. Kavanagh, the Supreme Court established three criteria: the party must genuinely be unable to afford the costs of the litigation; the claim must have a serious prima facie basis; and the issues raised must transcend the party’s individual interests and be of public importance.³⁰³¹³²

The Quebec Court of Appeal reaffirmed in Hétu v. Notre-Dame-de-Lourdes that this jurisdiction remains exceptional and that access-to-justice considerations are central to the analysis.³³³⁴

Unlike in family law, where protecting an economically vulnerable party is an inherent objective, the non-family context therefore imposes a significantly higher threshold.

6. Final Thoughts

A provision for costs has become an essential mechanism for ensuring access to justice. Although its application is particularly well developed in family law, the case law demonstrates the courts’ consistent desire to prevent economic inequality from depriving a party of a genuine opportunity to assert and protect their rights.

Courts now consider a range of factors, including financial necessity, disparity in resources, procedural conduct, the protection of children and the importance of the dispute. Through this flexible and contextual approach, the provision for costs appears less as an exceptional measure and more as a mechanism designed to preserve the fairness of the judicial process itself.

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