Interim Costs and Disbursements: Bagheri-Sadr v. Yaghoub-Azari
This case deals with a motion brought by the respondent/wife for imputations of income to the applicant/husband, temporary spousal and child support and interim disbursements.
The respondent/wife is asking the court to impute income to the applicant/husband in the amount of $325,000.00 and from there, make temporary orders for child support in the amount of $4,022.00 per month and spousal support in the amount of $8,230.00 per month. The respondent/wife is also seeking approximately $150,000.00 to be paid towards interim disbursements.
The applicant/husband brought a cross-motion seeking an order for the sale of the matrimonial home, an order for joint parenting, and an order granting him access to the children each weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. Access was agreed to on consent and ordered. However, with regard to the issue of the disposition of the matrimonial home, Justice Edwards stated that same should be dealt with at a case conference as the issue had not been conferenced.
The applicant/husband and respondent/wife were married in Iran on January 28, 2002. They had two children and the respondent/wife was their primary caregiver.
On or around April 3, 2010 the applicant/husband entered into an agreement with his three brothers relating to his 25 percent shareholders’ interest in the Window City Group of Companies. Pursuant to said agreement, the applicant/husband is said to have severed his ties with the Window City Group of Companies and disposed of his 25 per cent shareholding.
However, at the time of this judgement, it was still to be determined whether this agreement was entered into legitimately or solely to defeat the interests of the respondent/wife. Additionally, the applicant/ husband admits that the agreement entered into was kept secret as he was fearful that it could impact a re-negotiation of the Window City Group of Companies long-term debt with its banker, Royal Bank of Canada.
On September 26, 2010, the respondent/wife asked the applicant/husband to leave the matrimonial home.
A dispute arose with regards to the date of separation, and same was still to be determined.
The applicant/husband claims that since the agreement of April 3, 2010, his only source of income is a consulting fee he receives from the Window City Group of Companies in the amount of $5,000 per month. However, Justice Edwards noted that on his Financial Statement, he claimed to have $12,090.00 in monthly expenses. Additionally, Justice Edwards determined that since April 2010, the applicant/husband had received approximately $102,000.00, either directly or indirectly, from the Window City Group of Companies.
The applicant/husband also listed debts in the amount of $1,567,000.00 on his Financial Statement, but failed to include the apparent debt of $1,500,000.00 to the Royal Bank of Canada which, pursuant to the agreement of April 3, 2010, the applicant/husband was to incur.
The information in the preceding paragraphs, coupled with the applicant/husband’s deficient disclosure, led Justice Edwards to seriously question the validity of the agreement and the existence of an outstanding debt to the Royal Bank of Canada in the amount of $1,500,000.00. Therefore, while Justice Edwards acknowledged that any such determinations as to the validity of the agreement would have to be left to the trial judge, it was in his capacity to draw adverse inferences as a result of the absence of financial disclosure and the inconsistencies in the applicant/husband’s financial statement.
When determining a motion seeking an interim payment of fees or disbursements, one issue is the ability of the payor to fund any order made with respect to interim costs and disbursements.
A court can make an order for interim disbursements pursuant to rule 24(12) of the Family Law Act, however, several conditions must be met prior to doing so, and they are:
- The merits of the case; and
- Special circumstances to satisfy the court that case is within the narrow class of cases where this extraordinary exercise of the court’s power are appropriate.
In addition, an order for interim disbursements must be made in order to “level the playing field” between the parties.
Justice Edwards considered all of the above and determined that the respondent/wife would need the services of a professional evaluator/litigation accountant to review the complicated corporate disclosure that had already been ordered. He also felt that she had a meritorious case to advance for a potentially substantial equalization payment if the agreement of April 3, 2010 was deemed invalid. Lastly, Justice Edwards was satisfied that she did not have the wherewithal to advance her claims without the payment of interim costs and disbursements. As such, Justice Edwards ordered that the applicant/husband pay to the respondent/wife the sum of $125,000.00 for interim costs and disbursements.
With regard to the respondent/wife’s claims for temporary child and spousal support, Justice Edwards adjourned same to a case conference.