Court File and Parties

Court File No.: FS-09-16033
Date: 20120326
Superior Court of Justice - Ontario

Re: RONALD SLOAN v. RENATE WEIDNER

Before: STEWART J.

Counsel:
Jaret Moldaver , for the Applicant
Kenneth Cole , for the Respondent

Heard: March 15, 2012

ENDORSEMENT

[ 1 ] The Applicant (“Sloan”) brings this motion for interim spousal support pursuant to section 33 of the Family Law Act . He also seeks an order for support retroactive to the date of separation of the parties.

[ 2 ] In addition, Sloan seeks an order that the Respondent (“Weidner”) pay interim disbursements in the amount of $50,000.00 in advance of the pending trial, maintaining that he cannot afford to retain an expert accountant/valuator whose assistance and evidence is required to address the financial matters in issue between the parties.

[ 3 ] Although the parties have been separated for almost four years, this motion for interim relief has been brought only recently. The trial of the Applicant’s claims is presently scheduled to proceed during the week of June 11, 2012, a date which is less than three months from the hearing date of this motion.

[ 4 ] I will deal first with the request for advance payment of disbursements. In my view, the provisions of Rule 24(12) of the Family Law Rules and case law decided thereunder as well as authorities in other contexts dealing with requests for advance costs establish hurdles which Sloan has not overcome.

[ 5 ] In my view, this is not one of the special or exceptional cases in which the granting of the order sought is necessary to “level the playing field”. Sloan has been able to pursue this litigation for the past three years. He runs two businesses which are still operating. His updated Financial Statement shows that his assets have actually increased, albeit by a modest amount, since the date of separation. No debt owing to his counsel is noted thereon. I am not satisfied that, were his request for an award of advance interim disbursements not granted, Sloan would be deprived of the opportunity to proceed to trial as a result. That aspect of the motion is therefore dismissed.

[ 6 ] I turn now to Sloan’s request for interim support.

[ 7 ] Sloan and Weidner were in a co-habitation relationship from May of 1997 until April or May of 2008. He is now 66 years old; she is 62. Sloan moved out of Weidner’s home in March of 2009.

[ 8 ] During most of the course of their relationship, Sloan lived in Weidner’s home and contributed a monthly sum of $1000.00, the precise purpose of which remains in dispute.

[ 9 ] During this relationship and following, Sloan continued to operate on a full-time basis two tennis related businesses: Ron Sloan Racquet Specialist and Cambridge Industries. In 2009, Sloan’s businesses earned a combined revenue of $430,000.00, whereas his personal income declared in 2009 for tax purposes was only $17,160.00. In 2010, the businesses earned a total of $358,788.00, whereas Sloan’s declared income was only $19,717.00.

[ 10 ] Until recently, Sloan owned a building at 515 Milner Avenue, Toronto. He has now sold it for $285,000.00, a sum which Weidner alleges is less than market value.

[ 11 ] Although Weidner is a successful businesswoman who earned significantly more income than Sloan during the course of their relationship, she has recently suffered a serious business reversal due to the fact that her main client has terminated the property management contract with her company. As a result, her company has gone from a profitable position to a loss in excess of $90,000.00 in 2011.

[ 12 ] The length and nature of his relationship with Weidner does qualify Sloan as a person who may advance a claim for support under the Family Law Act . It is also clear that during their co-habitation Weidner earned a significantly higher income than Sloan and owned property of a considerably greater value, most of which was left to her by her late husband.

[ 13 ] The parties each ran separate businesses and maintained separate finances and bank accounts. There was no intermingling of funds as between the parties. Weidner argues now, and will argue at trial, that Sloan never demonstrated a dependency upon her, has suffered no economic disadvantage, has made no contributions toward her for which he has not been compensated and left the relationship in the same or slightly better financial position as he entered it.

[ 14 ] Sloan takes the position that he and Weidner lived as spouses, travelled together and functioned as a couple such that he developed an economic dependency upon her.

[ 15 ] As has been noted in the authorities provided, interim support is generally a short-term and “makeshift” remedy designed only to ensure that a dependant has sufficient means to maintain a reasonable lifestyle until trial.

[ 16 ] In view of the looming trial, I am of the opinion that the issue of any claim for retroactive support should be left to the trial judge to determine. As a result, that aspect of the relief sought is dismissed.

[ 17 ] In this case, however, I am satisfied that despite her recent business reversal Weidner continues to earn significantly more income than Sloan and is of considerably greater financial means. Despite the able arguments advanced on Weidner’s behalf, I am of the view that Sloan has at least advanced a prima facie case and sufficient need for support for the purposes of establishing entitlement to an order for some financial support until trial.

[ 18 ] Having considered the parties’ representations as to their current incomes and noting the lack of absolute mathematical precision attaching to each, as well as the suggested applicable guidelines set out in the Spousal Support Advisory Guidelines, I consider that a fair and reasonable amount to award to Sloan is the sum of $1,500.00 per month. That amount shall be paid to Sloan by Weidner commencing March 30, 2012 and on the 30 th of each month thereafter until trial, subject to any adjustment or variation which may be deemed appropriate by the trial judge once the issues raised in the proceedings and the evidence relating thereto have been fully canvassed.

[ 19 ] If the subject of costs of this motion cannot be agreed upon by the parties, brief written submissions on that subject may be delivered by Sloan within 10 days of the date of release of this endorsement, and by Weidner within 10 days thereafter.

STEWART J.

Date: March 26, 2012