COURT FILE NO.: FS-19-09107
DATE: 20220121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.M.
Applicant
– and –
C.B.
Respondent
Gary S. Joseph, Matthew Pike and Margarit Jo, for the Applicant
Robert M. Halpern, Tharmini Kuhathasan and Alexander Sennecke, for the Respondent
HEARD: December 9, 2021
PINTO J.
REASONS FOR DECISION
[1] The applicant wife, S.M., brought a motion dated November 3, 2021 seeking various forms of relief including an order that the respondent husband, C.B., pay:
• ongoing interim spousal support in the amount of $340,000 per month, effective December 1, 2021, on a temporary and without prejudice basis;
• a lump sum representing his retroactive spousal support obligations effective April 2, 2019 up to and including November 2021, less the lump sum amount of $538,000 that C.B. paid the applicant in or around January 2020; and
• $470,500 as an interim disbursement.
[2] The applicant's spousal support motion was to be heard by me on November 18, 2021 but I adjourned the matter to December 9, 2021 because the applicant had filed a reply affidavit a day later than the deadline set by Justice Steele's Order of October 26, 2021, thereby preventing the respondent from addressing the late filed material in his factum. In adjourning the motion, I ordered that the respondent pay the applicant an uncharacterized amount of $93,000 per month for November and December 2021 for a total of $186,000. I also permitted the respondent to file a supplementary factum.
Facts
[3] The parties met in July 2009. The respondent is not Canadian; he is a citizen of the U.K. and the Netherlands, but currently lives in Germany.
[4] The applicant has a daughter, now 34, from a previous marriage. The respondent has three adult children from his previous marriage. There are no issues related to children on the interim spousal support motion.
[5] The parties were married on February 13, 2013 in Exuma, Bahamas. The applicant states that the parties separated on or around February 8, 2019.
[6] The applicant owns three properties solely:
• A house in Toronto ("Toronto property") purchased on March 16, 2018
• A property in Mono, Ontario ("Mono farm") purchased on April 28, 2017
• A property in Grand Isle Exuma, Bahamas ("the Bahamas property")
[7] The parties jointly own a cottage in Port Carling, Ontario ("the Cottage").
[8] The applicant formerly owned a property on Roxborough Street in Toronto, which she sold in August 2017, and then rented from the new owners until September 2018.
[9] On November 4, 2019, the applicant obtained $400,000 by way of a mortgage secured against the Mono farm. On August 7, 2020, the applicant obtained $2.0 million by way of a mortgage secured against the Toronto property.
[10] The respondent's position is that the applicant holds 100% interest in the Toronto property and Mono farm in trust for him.
[11] On January 10, 2020, the respondent advanced $538,000 to the applicant.
[12] The applicant learned on or about May 17, 2021 that the respondent had placed matrimonial home designations on her Toronto property and Mono farm. On August 13, 2021, prior to bringing her interim spousal support motion, the applicant brought a motion to lift the matrimonial home designations on the two properties.
[13] In response, the respondent brought a cross-motion dated August 18, 2021 dealing with a number of issues including the designation of matrimonial home on the properties, non-dissipation of the applicant's assets, and sale of the Cottage. The respondent requested that the applicant's motion and his cross-motion be adjourned to a mutually agreeable date which would occur after a Case Conference scheduled for September 22, 2021. The parties' motions came before Justice Leiper on August 26, 2021.
[14] In her endorsement dated August 27, 2021, Justice Leiper adjourned the motions to a long motion to be heard on March 31, 2022. She also ordered that:
Pending the return of the motion on March 31, 2022 to determine whether the Toronto property and/or the Farm Property is a matrimonial home, the Applicant, S.M. ("the Applicant") shall be permitted to use the equity in the Toronto property and/or the Farm property to fund loans for her carrying costs with respect to the disputed properties during the period between August 27, 2021, and March 31, 2022, without the consent or signature of the Respondent, C.B. ("the Respondent") for a total additional loan and encumbrance amount on the properties of $700,000.
[15] In the respondent's confirmation of motion form for the within December 9, 2021 return of motion, he characterized the order being sought as, "An order to address spousal support pending the March 31, 2022 long motion, which Pinto J., indicated at the November 18, 2021 motion would be the subject matter of this motion attendance."
[16] Paragraphs 37 and 38 of the respondent's supplementary factum state:
In the present case, the Applicant has retained several, high value properties in her name, which she has used - rightly or wrongly - to access over $2.4 million of funds post-separation. There is also an Order allowing her to further encumber the Toronto property and/or the Farm property to a maximum of $700,000. The Respondent is agreeable to lifting the certificates of pending litigation against both the Toronto property and the Farm property permanently to ensure her access to these funds.
The Respondent is also agreeable to a further court order allowing the Applicant continued access to the equity in these two properties, i.e. over and above the $700,000, to pay for the carrying costs of same pending trial or the sale/transfer of these properties, in such amount as the court may deem just (or with the Respondent's prior written consent, such consent not to be unreasonably withheld). [Emphasis added]
[17] I understand, therefore, that as of December 9, 2021, the respondent is prepared to lift the matrimonial home designation on the two properties, albeit the applicant should still be bound by the court's determination of permissible borrowing against the subject properties.
[18] Based on counsel's submissions, I also understand that:
The respondent only recently, as of December 6, 2021, provided more fulsome disclosure. In Justice Steele's October 26, 2021 order, she ordered that mutual disclosure should occur by November 5, 2021. By the time of the within motion on December 9, the applicant did not have the opportunity to review the new disclosure and make submissions about spousal support based on that disclosure.
[19] Justice Steele also ordered that questioning occur by February 15, 2022. The parties will arrange for that to occur and will be in a far better position to advance their positions on interim spousal support following questioning.
[20] The parties are keen to maintain the long motion date of March 31, 2022 but agree that the focus of what is being argued should now change to interim spousal support and interim disbursements, instead of the issue of lifting the matrimonial designation on the two properties. I assume that the potential sale of the Cottage is still on the agenda for March 31, 2022.
[21] Having better understood the evolving context of the proposed motion(s), the parties reframed their submissions on the following question that I posed: What is the right quantum of interim spousal support and/or interim disbursements for the applicant that the court should order between now and March 31, 2022 on the assumption that the respondent has lifted the designation of matrimonial home on the Toronto and Farm properties?
Parties' position on Interim Spousal Support Motion
[22] The applicant's submissions can be summarized as follows:
(a) On the facts of this case, there is a firm basis for compensatory and non-compensatory ("needs based") interim spousal support.
(b) The applicant has dedicated herself to the respondent and his children for the duration of their cohabitation from 2009 to the time of separation in February 2019.
(c) On an interim spousal support motion, a granular examination of spousal support is to be avoided.
(d) The applicant should have enough money to maintain her lifestyle until March 31, 2022, at which time, following questioning, the court can examine the merits of interim spousal support in greater detail.
(e) Almost 3 years into the proceeding, the husband's income is not clearly known due to his failure to make full disclosure. Even at this late stage, he has not retained a Chartered Business Valuator (CBV) to produce an income report. An adverse inference should be drawn against him.
(f) The respondent's submission that his income is in the $250,000 to 300,000 range is not credible and wholly inconsistent with the available evidence of the respondent's extremely wealthy lifestyle.
(g) Based on available bank statements, the respondent's liquid assets appear to be in the range of at least $40 million dollars. An approximate rate of return of 12.3% is warranted based on available information. This would yield an annual income of $4,920,000 for the respondent which should then be grossed up to account for investment income being taxed at a lower rate.
(h) The court should not factor in the applicant's ability to obtain further financing as, even with the respondent's decision to remove the matrimonial designation on the two properties, the applicant's ability to obtain financing is speculative.
(i) There is no legal obligation on the applicant to deplete her capital.
(j) On the date of separation, February 8, 2021, the applicant's financial statement indicated that she had $880,430.84. As of November 3, 2021, she had $136,262.29.
(k) The applicant's financial statement also indicates that her monthly expenses are approximately $136,000 per month. Given the applicant's financial obligations towards the upkeep of property, she is essentially out of funds.
(l) The case law suggests that little emphasis should be given, on an interim spousal support motion, to the applicant trying to obtain self-sufficiency.
(m) On an interim support motion, the court should not focus on such contested issues as the applicant's health and her alleged ability to obtain new employment.
[23] The respondent's position can be summarized as follows:
(a) The parties were in a short-term marriage of six years.
(b) The applicant has already accessed $1.4 million in equity from the subject properties which are the subject of an ownership dispute between the parties.
(c) The respondent has already advanced funds of $538,000 to the applicant and paid for other items.
(d) Justice Leiper's order has already provided the applicant with the opportunity to obtain funds through financing.
(e) With the respondent's concession of lifting the matrimonial designation on the two properties, any impediments that may have existed to the applicant for obtaining financing have now been eliminated.
(f) Despite the applicant's repeated claims that she is struggling financially, the applicant has access to significant funds.
(g) The issue of retroactive spousal support should be addressed at trial or, in the alternative, at the long motion in March 2022, not at the within motion.
(h) A closer scrutiny of the applicant's expenses, even if accepted as true, suggests that her property related expenses total $66,565.36 monthly, whereas the applicant has variously listed her monthly expenses as $75,000 or $136,247.53.
(i) An order of interim disbursements would be inappropriate on the facts of this case especially before the long motion is argued. This is particularly true where the applicant has refused to sell the Cottage which would liberate funds through the proceeds of sale being distributed to the parties on a prima facie 50/50% basis, and reduce the applicant's carrying costs. There is approximately $2.7 million of equity in the Cottage. In the alternative to selling the cottage, the applicant can also obtain additional financing by encumbering her interest in the Cottage, something that the respondent would consent to.
(j) In the alternative, if the court is inclined to order some form of interim support for the applicant, it should be in the form of uncharacterized support as the SSAG formula assumes that the payor can tax deduct the amount, whereas that is not the case here given the respondent's non-Canadian residency.
Interim Spousal Support
[24] In my endorsement dated November 18, 2021, I adjourned the interim spousal support motion to December 9, 2021. When I ordered, on November 18, that the respondent pay $93,000 per month for each of November and December 2021 to the applicant, I did so on a without prejudice basis. That means that I should determine afresh the merits of the parties' arguments for and against interim spousal support and interim disbursements and not use the $93,000 as a precedent for anything.
[25] Further, the ground has shifted significantly since November 18. The respondent has, on the record, agreed to lift the matrimonial home designation on the Toronto property and Mono farm, and the parties have agreed to reserve the March 31, 2022 long motion to argue interim spousal support, among other things, following questioning which shall occur by February 15, 2022. Furthermore, now that further disclosure has been obtained, the parties will be in a better position to argue interim spousal support on March 31, 2022.
[26] Both parties acknowledge that a form of "rough justice" is called for here, and I find that the appropriate order is more in the nature of a holding order. Of course, my decision must still be principled, and I rely on the law with respect to interim spousal support orders, but the focus should be on getting the parties to the long motion, currently scheduled for March 31, 2022.
[27] In Patang v. Mirai, 2018 ONSC 6430 at para. 31, Justice Gilmore distilled the principles governing an award of interim spousal support from Samis (Litigation Guardian of). v. Samis as follows:
[31] Samis v. Samis, 2011 ONCJ 273 is a seminal case on the issue of the considerations to be made by the court when determining an award of temporary spousal support. I would summarize those considerations as follows:
a. Interim support is intended as a place holding measure in order to maintain the applicant's accustomed lifestyle (if possible) until trial.
b. A complete enquiry is not required.
c. Need and ability to pay take on a greater importance on temporary support motions.
d. The need to achieve self-sufficiency is of less importance.
e. Temporary support should only be ordered where a case for entitlement has been made out.
f. Support should be ordered within the range of Spousal Support Advisory Guidelines unless there are exceptional circumstances.
[28] As per Patang and Samis, I find that I should not focus at the present time on such factors as the applicant's health, her potential re-employment efforts, or her attempts at self-sufficiency. Accordingly, and because there is reasonable evidence that the applicant adopted a peripatetic lifestyle with the respondent for the decade that they were together, I assign an income of zero to the applicant.
[29] I also find that, despite the respondents' decision to lift the matrimonial home designations on the two properties, that financing should not factor into my interim spousal support decision. I also do not factor in the applicant's potential ability to sell the Cottage for the purposes of interim spousal support. However, as discussed below, the potential sale of the Cottage is a factor that I consider relevant when it comes to the issue of interim disbursements.
[30] On a without prejudice basis, and only for the purposes of the December 9 motion, the respondent conceded the applicant’s entitlement to interim spousal support. Accordingly, I do not find it necessary to discuss entitlement.
[31] I also considered the provisions of the Spousal Support Advisory Guidelines (SSAG)[^1] and the Revised User's Guide[^2] in respect of high income earners.
[32] As Justice Shore stated in Zahelova v. Wiley, 2019 ONSC 5024 at paras. 23 and 24:
[23] The SSAG's do not apply when a payor's annual income exceeds $350,000: see Elgner v. Elgner, (2010), 2010 CanLII 100055 (ON SCDC), 99 O.R. (3d) 687 (C.A.). The formulas and amounts set out in the SSAG's are no longer presumptive once the payor's income exceeds the "ceiling" of $350,000 of income. The Spousal Support Advisory Guidelines: The Revised User's Guide (Ottawa: Dept. of Justice, 2016) states at p. 57:
The formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts.
[24] With income above the ceiling, spousal support requires an individualized, fact-specific analysis, having regard to the legislative framework. There is further discretion given to the court in these circumstances. The SSAG's can and have been used as a starting point for support in cases where the payor's income far exceeds $350,000, but their use has been subject to an examination of the parties' individual circumstances. [Emphasis in original.]
[33] The Revised User’s Guide states:
The Advisory Guidelines provide an exception for compelling financial circumstances in the interim period (see SSAG, 12.1). As Justice Martinson recognized in D.R.M., above, this exception is based on the recognition that the amount may need to be different—either higher or lower—during the interim period while parties are sorting out their financial situation immediately after separation. In many cases the exception is still not explicitly relied upon, although the circumstances warranting an award different from the SSAG range are taken into account. [Emphasis in original]
[34] I requested and the parties provided me with submissions on various SSAG calculations.
[35] The applicant urges me to rely on a document provided by the respondent entitled “Commerzbank History of Value Development” report to determine the respondent’s investment income and then extrapolate from that to determine the respondent’s overall income. The respondent claims that the report shows the respondent’s annual return for 2021 was 12.3% on his investment account with 5,681,990 Euros. The report appears to have been produced on October 13, 2021. The applicant submits that the respondent has not provided similar reports for his other Commerzbank investment account with 9,008,175 Euros as of October 29, 2021 (except for a minor account with 2,666 euros as of October 13, 2021). Further, the applicant submits that the respondent has still not provided any current bank statements for his Anthos Bank B.V. account. The applicant believes that the Anthos Bank is where the bulk of the respondent’s wealth is stored. The applicant submits that the respondent bears the responsibility for fully disclosing his income. Since he has not done so, the court is required to make a decision from the available information and the 12.3% figure is appropriate.
[36] The respondent disagrees with using the 12.3% figure for the respondent’s investment income since the figure does not note a “rate of return”. The respondent points out that the 12.3% figure is really a product of several variables in any given year such as the amounts deposited and withdrawn and a “time weighted assets” figure. The respondent states, for instance, that the comparable figure for 2020 was only 1.8% and was negative for several years.
[37] The respondent submits that the appropriate rate of return to be applied to the respondent’s capital is 2% which results in an annual income from investments in the amount of $425,552 (calculated as 2% of $21,277,618). The respondent arrived at the 2% figure relying on the post-judgment interest rate in the Courts of Justice Act, as well as case law such as Greenglass v. Greenglass, 2010 ONCA 675. In Greenglass, at paragraph 60, the Court of Appeal applied a rate of 2% to the parties’ investments. I would distinguish Greenglass and not rely on it since the Greenglasses were a family of much more modest means than the parties in this case.
[38] I agree with respondent that the Commerzbank History of Value Development report can be read in a number of ways and that it does not necessarily show that the rate of return on the respondent’s investments is 12.3%. However, I also note that, under “Total Performance History” over the years 2014 to 2021, the comparable figure to 12.3% (which is for 2021) is 49.4%, a much higher figure than the one proposed by the applicant. Furthermore, while there were years in which a much lower or even negative figure arose from the same calculation (i.e. dividing the “absolute value development” by the “time-weighted Assets” and converting that into a percentage), it is also true that in 2019, the figure was 12.7%. Accordingly, while there are reasons to question the 12.3% figure, on balance, and in the absence of the respondent providing full disclosure concerning his investment income, the 12.3% is a reasonable figure to use. Put another way, given the available evidence, I am concerned that the 2% figure proposed by the respondent may significantly understate the respondent’s investment income.
[39] I do not consider it appropriate at this time to consider retroactive spousal support. That is more appropriately the terrain of the long motion in March 2022. I therefore consider the interim spousal support award to begin effective November 2021, which is essentially when the applicant's motion for interim spousal support was brought and notwithstanding the fact that the applicant’s Notice of Motion seeks relief commencing December 1, 2021.
[40] In Zapfe v. Zapfe, 2019 ONSC 4065, 29 R.F.L. (8th) 321, on an interim support motion, Kurz J. found the payor husband's annual income to be $2.09 million and the recipient wife's annual income to be $30,000: at paras. 3-4. He found the wife's claim to be non-compensatory in nature. He ordered the husband to pay $30,000 per month in spousal support using the Spousal Support Advisory Guidelines (SSAG) to find a support figure "just over the high end of the mid-way point between $350,000 and $2,090,000": at paras. 58-59.
[41] In Devathasan, 2019 BCSC 661, 27 R.F.L. (8th) 388, appeal dismissed as abandoned, 2020 BCCA 209, the British Columbia court ordered the payor husband to pay $100,000 in monthly spousal support based on his deemed income which ranged from $4,623,000 in 2016 to $3,102,000 in 2019 and following years: at para. 368.
[42] While the available evidence suggests that the respondent's asset base may be $40 million or more, it is preferable to go with the figure of $21,277,616.16 that the respondent himself has declared as the "total value of accounts, savings, securities and pensions" on his financial statement dated December 7, 2021. These assets should be capable of generating investment income for the respondent. However, as a trade-off for using a base amount lower than the applicant suggested, and given that a variety of arguments were made for choosing various percentages for the return of investment, I would choose the 12.3% figure suggested by the applicant based on the 2021 YTD return from one of the respondent's Commerzbank accounts. I would then apply the 12.3% rate of return to the $21.3 million to yield an annual income of $2,617,146.79 for the respondent. Since this amount would be taxed as a capital gain at only 25%, pursuant to section 19(1)(h) of the federal Child Support Guidelines, I would gross it up to $4,121,904: see Gonsalves v. Scrymgeour, 2017 ONSC 1034 at paras. 122 and 123; and Qaraan v Qaraan, 2012 ONSC 6017 at paras 227 to 233, aff’d 2014 ONCA 401 at para. 12.
[43] The respondent submits that, given the holdover nature of the within motion, I should make the support payments uncharacterized since the payment is not tax-deductible to the respondent, a non-Canadian resident. The parties did not spend much time on this issue. I find that, on an interim basis, it is preferable that I order payments to be uncharacterized. The parties can elaborate on this issue when they argue the long motion.
[44] A DivorceMate calculation based on the respondent’s Annual Guidelines Income of $4,121,904 using a “without child support” formula indicates a low, mid and high point of $48,948, $57,106 and $65,263 per month respectively. I would choose the high point given what I understand are the applicant’s circumstances and order that the respondent pay the applicant a lump-sum amount of $326,315 in uncharacterized support (i.e. $65,263 for each month from November 2021 to the end of March 2022).
[45] I emphasize that my decision herein on interim spousal support will be reconsidered at the long motion with the benefit of new evidence that may arise from further disclosure and questioning.
Interim Disbursements
[46] The applicant seeks an interim disbursement of $470,500 to "level the playing field" with the respondent who is very wealthy.
[47] Rule 24(18) of the Family Law Rules provides for the ordering of interim disbursements. This rule must be read in conjunction with the primary objective of the rules which is to deal with cases justly.
[48] In Samis, the following principles for the awarding of interim disbursements were set out:
[100] The principles that courts have been applying to determine whether to order interim disbursements pursuant to this subrule are set out in Stuart v. Stuart, 2001 CanLII 28261, 24 R.F.L. (5th) 188, [2001] O.J. No. 5172, [2001] O.T.C. 965, 2001 CarswellOnt 4586 (Ont. Fam. Ct.), as follows:
The ordering of interim disbursements is discretionary: Airst v. Airst, [1995] O.J. No. 3005; Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.J.) and Lossing v. Dmuchowski, [2000] O.J. No. 837.
A claimant must demonstrate that, absent the advance of funds for interim disbursements, the claimant cannot present or analyze settlement offers or pursue entitlement: Hill v. Hill (1988), 1988 CanLII 4710 (ON SC), 63 O.R. (2d) 618 (H.C.J.) and Airst v. Airst, [1995] O.J. No. 3005.
It must be shown that the particular expenses are necessary: Lossing v. Dmuchowski, [2000] O.J. No. 837.
Is the claim being advanced meritorious? Lynch v. Lynch (1999), 1 R.F.L. (5th) 309 and Randle v. Randle (1999), 1999 ABQB 954, 3 R.F.L. (5th) 139.
The exercise of discretion should be limited to exceptional cases: Organ v. Barnett (1992), 1992 CanLII 7433 (ON SC), 11 O.R. (3d) 210 (Ont. Gen. Div.).
Interim costs in matrimonial cases may be granted to level the playing field: Randle v. Randle (1999), 1999 ABQB 954, 3 R.F.L. (5th) 139.
Monies might be advanced against an equalisation payment: Zagdanski v. Zagdanski, 2001 CanLII 27981 (ON SC), 55 O.R. (3d) 6, 2001 CarswellOnt 2517.
The court must consider which of these principles adhere to the primary objective of the Family Law Rules.
The court interprets the new Family Law Rules to require the exercise of the discretion in rule 24(12) on a less stringent basis than the cases that call for such only in exceptional cases. The discretion should be exercised to ensure all parties can equally provide or test disclosure, make or consider offers or possibly go to trial. Simply described, the award should be made to level the playing field.
An order under subrule 24(12) should not immunise a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a licence to litigate.
Certainly, the proof of the necessity of interim disbursements would be critical to the successful claim. The claimant must clearly demonstrate that the disbursements are necessary and reasonable given the needs of the case and the funds available. In particular, if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert.
The claimant must demonstrate that he or she is incapable of funding the requested amounts.
The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.
The order for interim disbursements should not be limited to cases where it would be taken out of an equalisation payment. There are cases where there would not be an equalisation payment. The litigants could be a child suing a parent, an elderly parent suing an adult child or a family that has not acquired assets. It may be that a party with a minimal income stream and no liquid assets needs disbursements to test evidence that might lead to him or her resisting an equalisation order. The levelling of the playing field should not be limited to those with an expected equalisation payment.
[49] I have considered all the above factors. I find that the applicant has clearly demonstrated that the disbursements are necessary and reasonable given the needs of the case and the funds available at least until the hearing of the long motion currently scheduled for March 31, 2022. I find that the applicant may own several expensive properties but her income is limited. I also find that the within litigation is and has been extremely expensive. We are almost 3 years into this litigation and it is only now that more fulsome disclosure from the respondent is being provided. He has not retained a CBV. I find that the applicant's retainer of a CBV is reasonable. The evidence is that the applicant's CBV is going to require approximately $75,000 to generate a proper report. Furthermore, the parties are heading to questioning and then a long motion. I am only focusing on the likely expenses of the applicant to get her to the other side of the March 31, 2022 long motion. The parties can argue interim disbursements again before the long motion judge.
[50] The applicant's counsel has quoted a fee of "at least" $395,000 in legal fees to bring this matter to a conclusion. I would be surprised if the fees are that low if this matter goes the distance. Still, rounding that figure up to $400,000 and estimating that a trial will not occur until the end of 2023 (approximately two years from now), I would estimate that the applicant's legal costs are around $100,000 for every six month period. Although the long motion is roughly only 3 months away, I anticipate that, given the importance of the motion, what would have normally been spent in 6 months, will be spent in the next 3 months. I calculate the proper disbursements request is $100,000 for legal fees, which does not include the $75,000 required by the applicant's CBV. I calculate that the applicant's need for disbursements, not to the end of the trial, but to the end of the hearing of the long motion is $175,000.
[51] In my November 18, 2021 endorsement, I ruled that the respondent should pay (and he did pay) $186,000 to the applicant. The respondent was candid in his assessment that he does not seriously expect to see the $186,000 returned to him depending on the outcome of this motion. Still, this does not mean that, at least for the purposes of interim disbursements, I should ignore that amount having been paid. And while I did not consider it proper to consider the sale of the Cottage (or its encumbrance) for the purposes of interim spousal support, I consider it fair game for the purpose of interim disbursements. Interim disbursement should be used to level the playing field, however, the court should be cautious in awarding interim disbursements when the requesting party's playing field includes a multi-million dollar mansion in Toronto, a home in Bahamas, a farm and joint ownership of a $5 million cottage, the latter of which could very well be sold.
[52] Taking into account all the circumstances, I find that as of now the applicant has successfully demonstrated her "need" for interim disbursements but only up to the hearing of the long motion. I would round up the $175,000 that I consider appropriate to $186,000, the amount which has already been paid by the respondent since I am treating interim spousal support as a separate category. I would then declare that the respondent has already paid the interim disbursements that he ought to have paid.
Conclusion
[53] For the foregoing reasons, an Order shall go that:
a) The respondent shall pay the applicant forthwith a lump-sum amount of $326,315 in uncharacterized support on a temporary and without prejudice basis; and
b) The respondent shall pay to the applicant $186,000 in interim disbursements, but as the respondent has paid this amount already, albeit as an uncharacterized amount pursuant to my order of November 18, 2021, the respondent shall have no further obligation to pay.
[54] I request that the parties send me a draft order approved as to form and content based on the foregoing.
[55] On the issue of costs, if the parties are unable to agree on costs of the motion before February 4, 2022, the parties shall deliver cost submissions by that date, limited to three pages, double spaced, not including the Bill of Costs, Offers to Settle and Authorities (which should be hyperlinked).
[56] The Draft Order and Costs Submissions should be directed to the Family Law Judicial Assistant, Anna Maria Tiberio’s e-mail address at AnnaMaria.Tiberio@ontario.ca.
Pinto J.
Released: January 21, 2022
COURT FILE NO.: FS-19-09107
DATE: 20220121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.M.
Applicant
– and –
C.B.
Respondent
REASONS FOR JUDGMENT
Pinto J.
Released: January 21, 2022
[^1]: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008).
[^2]: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), at pp. 56-58.