Court File and Parties
CITATION: Melendez v. Soleimani, 2011 ONSC 5468
DIVISIONAL COURT FILE NO.: 371/11
DATE: 20110916
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
AMADEO MELENDEZ Applicant (Respondent)
– and –
FERESHTEH SOLEIMANI Respondent (Appellant)
Maurice W. Pilon, for the Applicant (Respondent)
Michael H. Tweyman, for the Respondent (Appellant)
HEARD at Toronto: September 16, 2011
Reasons for Judgment
DAMBROT J.
[1] Fereshteh Soleimani seeks leave to appeal the order of D. Wilson J. granting the responding party’s motion for interim disbursements in the amount of $25,300.99, payable from the proceeds held in trust from the sale of the party’s matrimonial home, pursuant to Rule 24(12) of the Family Law Rules.
[2] The matrimonial home was sold for $117,265.20 and each party received $5,000.00 from these funds. In addition, the respondent had obtained a legal aid certificate and a lien was registered against the home. Upon the sale, this amount was paid to legal aid without protest on the part of the responding party, leaving a balance of $81,000.00 in trust, more than enough to cover the responding party’s prima facie half interest in the home.
[3] The responding party is employed and earns approximately $52,000.00 per year. He is required to pay child and spousal support. He has substantial debt. He says that without the order for interim disbursements, he will not be able to pursue this case through trial. The moving party receives $400.00 per month in spousal support, which is less than the bottom of the range in the spousal support advisory guidelines. She has no assets and substantial debt. She claims an equalization payment from the responding party. He concedes that he will owe some amount on this claim.
[4] The major issue in the trial, which is scheduled to be heard in November, is the quantum of the equalization payments. There are no liquid assets from which the responding party could satisfy an equalization payment other than the funds held in trust.
[5] The moving party says that she is owed $75,800.00 by way of equalization payment. The responding party says that she is entitled to $3,700.00 subject to several adjustments in his favour. He reaches this figure, according to the moving party, by adding $100,000.00 to the moving party’s side of the net family property ledger, resulting in an artificially reduced equalization scenario. The application judge concluded that she was in no position to determine the merits of either party’s position.
[6] The application judge acknowledged that an order such as this one should be made only in unusual or exceptional circumstances, but she found it difficult to comprehend the moving party’s position since she had already had legal expenses paid from the proceeds of sale. This circumstance, according to the application judge, resulted in the playing field needing to be leveled. The fact that a payment had already been made from the proceeds of sale for legal representation provided the necessary exceptional circumstance, at least when combined with an asserted inability to pay legal fees.
[7] I note that when the cases speak of leveling the playing field, they appear to be speaking of situations where there is a gross disparity between the resources of the person who receives the interim disbursement and the other party. Here, neither party has significant resources, but if anything it is the person receiving the disbursement who appears to have the greater resources. I also note, when considering whether or not this order leveled the playing field, that the payment to legal aid could never have affected the respondent, while the payment to the respondent may well affect the moving party.
[8] The moving party says that leave should be granted both because there are conflicting decisions and because there is good reason to doubt the correctness of the decision.
[9] With respect to the first basis for leave, counsel points to conflicting decisions in relation to two issues. First, whether an order for interim disbursements can be made solely for legal fees and second, whether or not a Court should order the payment out of funds when the opposing party has an arguable claim over the funds. There is merit to the position of the applicant that there are conflicting judgments on the issue of interim disbursements solely for legal fees, but it is the second issue that attracts my attention and I will turn to it now.
[10] There is a presumption that parties pay their own legal fees until the proceedings are over, and that it would take more than evidence of an inability to pay one’s lawyer to rebut that presumption (see Waxman v. Waxman, (2003), 186 O.A.C. 217 and Rosenberg v. Rosenberg, (2003), 2003 2228 (ON SC), 39 R.F.L. (5th) 403 (Ont. S.C.)). Where interim disbursements have been permitted, it has generally been in circumstances where the payment can be characterized as an advance on the ultimate equalization payment and not a payment to a party who will likely owe an equalization payment. Interim disbursements have been refused in the cases drawn to my attention where the applicant will likely owe an equalization payment to the responding party (see Gibson v. Gibson [2009] O.J. No. 4172 (Ont. S.C.)). In ordering an equalization payment without making an effort to assess, even in a preliminary way, the competing positions of the parties respecting the quantum of the equalization payment, the motion judge approached this matter in a manner that appears inconsistent in principle with other cases.
[11] There being conflicting decisions on a matter of principle, albeit in reference to an exercise of discretion, I conclude that it is desirable that leave to appeal be granted. It is particularly desirable that leave be granted because this decision has implications for access to justice.
[12] I am also of the view that there is good reason to doubt the correctness of this decision in the sense that it raises issues that are open to serious debate, but in light of what I have already said, I need not address that issue.
[13] The application for leave to appeal is granted.
COSTS
[14] Costs reserved to the panel hearing the appeal. Order for payment of interim disbursements stayed pending the appeal.
DAMBROT J.
Date of Reasons for Judgment: September 16, 2011
Date of Release: September 26, 2011
CITATION: Melendez v. Soleimani, 2011 ONSC 5468
DIVISIONAL COURT FILE NO.: 371/11
DATE: 20110916
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT J.
BETWEEN:
AMADEO MELENDEZ Applicant (Respondent)
– and –
FERESHTEH SOLEIMANI Respondent (Appellant)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: September 16, 2011
Date of Release: September 26, 2011