SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: FS-64-08
Date: 2013-09-20

Re: Patricia Marie Goetz, Applicant

and

James Donald McConnell, Respondent

Before: The Honourable Mr. Justice P.J. Flynn

Counsel:
Harley Bernard, Counsel for the Applicant

Pamela L. Hebner, Counsel for the Respondent

Heard: September 10, 2013

RULING

[1] While other relief is sought by the Applicant in her Notice of Motion and Factum, the only issue argued before me on this long motion was whether I should order the Respondent to pay to the Applicant an amount for interim disbursements, pursuant to Rule 24(12).

[2] The Applicant seeks $84,610 for those interim disbursements forthwith and prior to trial.

[3] This motion was heard by me two weeks prior to the scheduled start of trial, virtually on the eve of trial.

[4] The Respondent raised a preliminary objection to some of the Affidavit material relied upon by the Applicant on the basis of Rule 14(20)4.

[5] The language of that Rule is clear and mandatory, and as a result, I ruled that the Applicant’s Affidavits dated August 26, 2013 and September 5, 2013 could not be used on the motion.

[6] That ruling severely restricted the ambit of the Applicant’s argument.

[7] As a result, the Applicant’s counsel had to rely on the Financial Statements previously filed to show that:

(a) the Applicant’s income (other than child support) was only about $700 per month;

(b) the child support being paid did not cover her monthly expenses;

(c) the Applicant was in debt to the tune of about $120,000;

(d) the Applicant was unemployed; and

(e) that while the Respondent had gifted to the Applicant a SUV and transferred a one-half interest in the house in which she resided with her daughter to her, it ought to be obvious that the Applicant could not fund this litigation on her own.

[8] Mr. Bernard ably argued that the payment of interim disbursements was required “to level the playing field”.

[9] Of course levelling the playing field is not an automatic rule.

[10] Orders for the payment of interim disbursements have only been made in extraordinary circumstances and most often in cases where there will be an equalization payment owed to the moving spouse. But here, there will be no equalization payment: the parties never married. Indeed, they never lived together.

[11] The case law sets out that:

(a) the case must have sufficient merit to warrant pursuing; and

(b) the Applicant seeking relief must be in such poor financial circumstances that, but for the order, the matter would not be pursued.

[12] While it is obvious that there is a huge disparity in the incomes of the parties, the Applicant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available.

[13] Moreover, the Applicant must demonstrate that she is incapable of funding the requested amount.

[14] I am not satisfied that the Applicant has done that. Her Financial Statement shows no debt to either BDO, her expert, or to her solicitors. Of the $84,000 sought, at least $59,000 has been paid.

[15] Somehow, the Applicant seems to have funded the litigation so far.

[16] One must remember that it is improper to award spousal support in the guise of child support.

[17] It is not as if the Respondent in this case is a layabout, totally avoiding his responsibilities. He has been paying support on the basis of his Line 150 income. He also pays $500 per month into an educational savings plan of sorts for his 7 year old daughter. And, as previously indicated, he has gifted a one-half interest in a mortgage free house and an automobile to the Applicant.

[18] The fight here is about the true extent of the Respondent’s income, which the Applicant says, from the perspective of both experts, far exceeds his Line 150 income.

[19] Section 4 of the Child Support Guidelines tells us that when a support payor’s income is in excess of $150,000 per annum, it is within the discretion of the court to determine the amount of child support payable in respect of the amount in excess of $150,000 per annum in an amount “that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children”.

[20] Not only is it inappropriate to award spousal support under the guise of child support, it is also inappropriate to simply apply the table amount in a high income case and thereby award support in excess of the other party’s budgeted child care needs. As was said in Ross v. Ross 2010 CarswellOnt. 4398, “to exceed the child’s budgeted child care needs would cross the line into spousal support”.

[21] Based on the allowable evidence before me, I cannot make a definitive determination that the Respondent’s income for support purposes far exceeds his Line 150 income nor can I say that the disbursements sought by the Applicant are necessary and reasonable in the circumstances of this case or that the claim being advanced is on balance meritorious.

[22] Moreover, there has been no proffer that costs must of necessity be awarded to the Plaintiff. This is, after all, a request for interim disbursements costs.

[23] I can do no better than to quote Aston J. in Picard v. Picard 2001 28214 (ON SC), 2001 CarswellOnt. 1659, 18 R.F.L. (5th) 346, at para. 20:

... There is no prima facie entitlement to costs. More and more often under the Family Law Rules, parties who are successful in obtaining relief from the court are disentitled to costs (or even ordered to pay costs) because of offers to settle, the lack thereof, or unreasonable conduct as litigants. Not only does the evidence fall short of establishing that Mrs. Picard is likely to be successful in obtaining an order of costs, the evidence also falls well short of establishing that she would be unable to carry on this litigation without such an order ...

[24] In sum, the Applicant has not met the onus for an award of interim disbursements. Accordingly, the motion is dismissed.

Costs

[25] Both parties came prepared to argue costs. They submitted their Costs Outline or Bills of Costs in a sealed envelope for my consideration.

[26] The Respondent was the clear winner on this motion and is presumptively entitled to costs. I see nothing to detract from that presumption. Nor is there any justification, nor any claim, for full indemnity costs.

[27] Ms. Hebner has practised family law for 25 years. The hourly partial indemnity rate she seeks is $200. The Applicant should be grateful for that. Mr. Bernard, for the Applicant, argued this motion and did the bulk of the work on it. He was called to the Bar in 2011. His claimed partial indemnity rate is $186.

[28] The Respondent claims partial indemnity costs in the total amount of $8,085.51. The Applicant’s Costs Outline provides that she would have sought costs in the total amount of $15,155.90.

[29] Ergo the Boucher principal is manifest.

[30] Costs to the Respondent in the amount of $8,085.51.

P.J. Flynn J.

Released: September 20, 2013