Kerby v. Kerby

Kerby v. Kerby

Application denied because the applicant failed to satisfy the statutory threshold: the court was not persuaded the distribution would not be harmful to the claimant's interests and the applicant had not demonstrated necessity without less prejudicial alternatives; respondent had higher earning capacity even on...

Source-derived case information.

Citation
2020 BCSC 1078
Parties
Claimant: Amanda Lea Kerby also known as Amanda Lea Hamilton; Respondent: Nathaniel Christopher Kerby
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
22 July 2020
Procedural Posture
Family Law Property and Support / Interim Application for Interim Distribution Under S.89 Family Law Act
Outcome
Application for interim distribution denied.
Legal Topics
Interim Distribution, Section 89 Family Law Act, Economic Harm, Funding Litigation, Cohabitation Period Dispute, Child Support, Costs
Source Language
english
Family Law Property Division Spousal Support Interim Remedies Interim Distribution Section 89 Family Law Act Economic Harm Funding Litigation +3 more

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Parties

Amanda Lea Kerby also known as Amanda Lea Hamilton

Claimant

Nathaniel Christopher Kerby

Respondent

Procedural Posture

Family Law Property and Support / Interim Application for Interim Distribution Under S.89 Family Law Act

Legal Issues

  1. 1 Whether an interim distribution under s.89 FLA should be granted to fund litigation
  2. 2 Whether such an order would be harmful to the interests of the other spouse
  3. 3 Whether the applicant has demonstrated necessity and lack of other resources

Ratio Decidendi

Application denied because the applicant failed to satisfy the statutory threshold: the court was not persuaded the distribution would not be harmful to the claimant's interests and the applicant had not demonstrated necessity without less prejudicial alternatives; respondent had higher earning capacity even on disability, evidence of permanent disability was insufficient, and a $100,000 distribution would likely prejudice the claimant's property and support claims.

Court Disposition

Application for interim distribution denied.

Orders

  • Application for interim distribution pursuant to s.89 Family Law Act is denied.
  • No interim distribution ordered from the funds held in trust.