Hjelte v. Gettis, 2025 ONSC 2499

Court File No.: FS-23-36842
Date: 2025-04-16
Superior Court of Justice – Ontario
Between:
Noelle Joy Hjelte, Applicant
and
Michael Gettis, Respondent

Before: Mathen J.
Counsel:
Sarah Young / Raquel Simpson, for the Applicant
Michael Stangarone / Julia McArthur, for the Respondent
Heard: 2025-04-15

Endorsement

Relief Sought

[1] The Applicant brings a motion for the following relief:

a. An order for sale of the matrimonial home with additional provisions for disbursements;
b. A payment of $250,000 as an interim disbursement and/or advance on equalization;
c. A preservation order with respect to the parties’ holding company GES;
d. A non-depletion order;
e. Costs.

[2] The Respondent agrees to the sale of the matrimonial home if 50% of the net proceeds is released to the Applicant upon sale, with the remainder held in trust pending a final settlement or trial decision. The Respondent opposes the other relief, including on the basis that some of it is not properly before the Court.

[3] The parties cohabited for a year before marrying in 2014. They separated in 2021. They have two children. They have a holding company called Gettis Engineering Systems (GES) and a family trust. In 2019, the parties incorporated a further company called Kilne, Inc.

[4] The parties have starkly different accounts of their relationship to these corporate entities and the degree to which the Respondent is entitled to deal with them, especially as regards the actual or potential transfer of funds from GES to Kilne.

[5] On June 6, 2024, Justice Horkins issued a detailed temporary order, paragraph 6 of which states:

Without prejudice to the Applicant’s ability to bring a preservation motion, the Respondent agrees to advise the Applicant of any wind-up, financing transaction over $100,000, and any changes to the corporate structure with 30 days’ notice.

[6] On January 30, 2025, the parties completed a Trial Scheduling Endorsement Form before Justice Diamond. Justice Diamond gave leave to the Applicant to bring a motion to seek an advance. The TSEF notes possible issues of “undertakings and disclosure that may require a motion before trial”. The TSEF states that all further motions require leave of Justice Diamond.

Issues

[7] The issues on this motion are:

a. What matters are properly before the court?
b. What relief if any is owing to the Applicant?
c. Are costs warranted?

[8] Briefly, I find that only the interim disbursement/advance issue is properly before the court. However, because the parties have agreed to sell the matrimonial home, an order shall issue to that effect. The Applicant has not met her burden to establish an award of either an advance, or interim disbursement of $250,000. The Respondent is owed some costs.

Analysis

Issue One: What matters are properly before the court?

i. Sale of the Matrimonial Home

[9] The TSEF lists the sale of the matrimonial home as a trial issue. The matrimonial home goes to equalization, another trial issue. The parties agree that it should be sold now. They are not entirely in agreement, however, about how to deal with the proceeds. The Applicant, ideally, wishes to have 100% of the proceeds as a credit towards eventual equalization. Alternatively, she seeks a release of 50% of the proceeds with the rest to be held in trust. At the hearing, the Respondent agreed to the latter position.

[10] It would not be appropriate on this motion to decide how to apportion the sale proceeds. However, as the parties have decided on a way to deal with the matrimonial home, an order to that effect shall issue.

ii. Preservation and Non-Depletion

[11] Nothing in the TSEF speaks to a preservation or non-depletion order. There is no evidence of it being raised as an issue in the trial management process.

[12] The Applicant relies on the “without prejudice” clause of Justice Horkins’ Order, above, as granting her leave to ask for preservation and non-depletion orders on this motion. The Respondent argues that all motions heard subsequent to the TSEF are governed by that document.

[13] The Respondent is correct. Justice Horkins’ order was made in the interlocutory period before the parties agreed on a trial. That period has ended. The parties have a trial date in January 2026. All of the relevant issues pertaining to the selection of that date, including the number of pre-trial motions that might be required, should have been raised with Justice Diamond.

[14] Consequently, if the Applicant wishes to bring a motion on this head of relief, she must return to Justice Diamond. Any issues of urgency can also be addressed by him.

iii. Interim Disbursement or Advance

[15] Justice Diamond did grant leave for a motion on an advance. The Respondent has asked for, alternatively, interim disbursements. Nothing consequential turns on this, and so I will turn to that issue now.

Issue Two: Should the Applicant receive an interim disbursement or advance?

[16] The Applicant has asked for $250,000 “as an interim disbursement, or, in the alternative, as an advance”. These are distinct concepts and must be treated as such.

i. Interim Disbursements

[17] Under Rule 24(25) of the Family Law Rules, a court may make an order that one party pay another “an amount of money to cover part or all of the expenses of carrying on the case, including a lawyers’ fees”.

[18] The purpose of Rule 24(25) is often described as “leveling the playing field” between the parties. It is a discretionary tool to ensure fairness.

[19] The caselaw on interim disbursements can be distilled into the following broad factors:

a. Impecuniousness – absent the advance of funds, the claimant will not be able to pursue their case: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371
b. Necessity – the expenses for which the order is sought are demonstrably necessary: Stuart v. Stuart. In Turk v. Turk, 2016 ONSC 4210, Kiteley, J. discusses the need to provide a breakdown of legal costs based on lawyers involved, including professional valuator fees.
c. Fairness – the order will “level the playing field” between the parties: Stuart v. Stuart.

[20] Interim disbursements in family law operate differently than the related civil concept of “advance costs”. Advance costs are limited to “exceptional” cases: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371. The standard in family law is less stringent: Stuart v. Stuart, supra at para 8.

[21] Nevertheless, the Applicant bears the burden of proof to show that any interim disbursements are appropriate.

[22] The Applicant argues that the following criteria must be met:

a. On a balance of probabilities, the moving party’s claim has sufficient merit.
b. The legal fees are necessary and reasonable given the needs of the case and the funds available.
c. The moving party is incapable of funding the requested amount.

[23] The Respondent cites additional factors, but I find that the Applicant has adequately presented the test with respect to disbursements.

[24] Many of the trial issues relate to equalization. The parties appear to agree that the Applicant is owed some equalization, but they differ greatly on the amount, from $580,000 on the low end to over $4,000,000 on the high end. While the Respondent vigorously contests many of the Applicant’s claims, there is no evidence that the equalization claim is entirely lacking. Therefore, having regard to the particular context of family law, I am persuaded on a balance of probabilities that this factor is met.

[25] The next factor is necessity. Necessity is tied to whether a party is so impecunious that, absent an interim payment, they will be unable to advance to trial.

[26] The Applicant estimates that the following expenses are required leading up to or during trial:

a. Questioning: 24 hours of lawyer time @ $500/hour = $16,000
b. Trial: up to ten days = $120,000 in lawyer time
c. At least one expert witness = $5,600
d. Advice and possible representation from a corporate lawyer
e. Wrongful dismissal and disclosure motions

[27] The Respondent calls the Applicant’s estimates vague. He also points to the Applicant’s current resources: $250,000 from him on the eve of separation; $500,000 from in total post-separation payments; and dividends from GES in the hundreds of thousands of dollars.

[28] Interim disbursements may not be as “exceptional” in family law as they are civil litigation. Nevertheless, they are a remedy requiring care and precision. I appreciate that the Applicant is not in a position to elaborate to the penny what expenses she needs to cover. Still, a number of the costs are speculative, including those related to the overall length of the trial and the possible participation of corporate counsel. Therefore, I find her submissions too unspecific to meet this second factor of the test.

[29] Given my finding on the necessity factor, it is not necessary to consider whether the Applicant could fund the disbursements she seeks. The Applicant has not established the need for interim disbursements of $250,000.

ii. Advance Against Equalization

[30] In the alternative to interim disbursements, the Applicant seeks an advance against equalization of $250,000.

[31] A court has jurisdiction to award an advance against equalization, having regard to the following factors:

a. There is certainty that the person will receive an equalization payment of at least the amount being sought;
b. There is a need and reasonable requirement for the funds; and
c. An advance is fair and just to the parties.

(Sork v. Sork, 2015 ONSC 312 at para 27)

[32] All of the equalization scenarios put forth by the parties, save one, do indicate an equalization payment of at least $250,000. One of the Respondent’s scenarios assumes that the parties will continue to operate GES together. I agree with the Applicant that, given the parties’ level of conflict, this scenario is unlikely. Since it depends on consent, I decline to consider it in the analysis of an advance on equalization. Therefore, I am persuaded on a balance of probabilities that the first criterion is met.

[33] The Applicant’s primary reasons for needing an advance are (a) she is not receiving support, (b) she is not earning an income, and (c) once the matrimonial home is sold, she will need to pay 12 months of rent at once (because she is unemployed). The Applicant estimates that she will require approximately $27,855 per month.

[34] The Respondent points out the substantial funds he has advanced to her already, which are recounted in paragraph 27, above. The Applicant acknowledges that she currently has access to $400,000.

[35] The Applicant’s arguments regarding the matrimonial home are not persuasive. Right now, the Respondent is paying all of the home’s carrying costs. The Applicant will not require 12 months’ rent until the home is sold. At that point, pursuant to this Order she will receive 50% of the net proceeds. It is not disputed that each party has $874,260.50 estimated equity in the home. While it is possible that some of this equity will be adjusted, the Applicant will receive hundreds of thousands of dollars. The Applicant has not persuaded me that this amount is less than the $250,000 advance she seeks.

[36] Therefore, I am not persuaded that the Applicant should receive an advance on equalization of $250,000.

[37] The Applicant’s requests for an interim disbursement and/or an advance on equalization are dismissed. However, this case is complex. I recognize that there may be a need to level the playing field before trial. Therefore, the dismissal is without prejudice.

Issue Three: Are any costs owing?

[38] The Respondent largely prevailed and is owed some costs on this motion. However, I agree with the Applicant that the issue of the matrimonial home did not need to be argued. The Respondent has provided a bill of costs of $16,507.61. I acknowledge that the Respondent was forced to respond to additional issues which were not properly before the court. Nevertheless, I find the expenses high for a one-hour motion. Given that fact, together with the fact that the issue of the matrimonial home should have been worked out in advance, the Applicant shall pay costs of $10,000.

Order

[39] In conclusion, I make the following order:

a. Pursuant to the attached order, the matrimonial home shall be sold, with 50% of the net proceeds released to the Applicant and 50% held in trust.
b. The Applicant’s request for preservations and non-depletion orders are dismissed.
c. The Applicant requests for an interim disbursement or an advance on equalization are dismissed without prejudice.
d. The Applicant shall pay to the Respondent costs of this motion in the amount of $10,000 inclusive of disbursements and HST.

Mathen J.
Date: April 16, 2025