Samis (Guardian of) v. Samis, 2011 ONCJ 273

Toronto (North York) Registry No. DR- 50728-10 DATE: 2011·V·19 CITATION: Samis (Guardian of) v. Samis, 2011 ONCJ 273 ONTARIO COURT OF JUSTICE BETWEEN: CATHERINE SAMIS, by her guardian GREGORY MORECROFT, Applicant, — AND — PHILIP SAMIS, Respondent. Before Justice Stanley B.

Sherr Heard on 6 and 12 May 2011 Reasons for Judgment released on 19 May 2011 CIVIL PROCEDURE — Costs — Form of order — Disbursements — Interim disbursements — Grounds — Litigant’s ability to realizeother financial resources — Wife (now 80 years old and suffering from dementia-Alzheimer’s type) was represented by son whomVermont probate court had appointed as her guardian to pursue support claim against Ontario husband — At time of appointment, wifehad about $715,000 in assets but this money was now gone — Motion judge reviewed factors in Stuart v. Stuart, (Ont. Fam.

Ct.) to determine whether to order interim disbursements under subrule 24(12) of the Family Law Rules and concluded that,in this case, order for payment of interim disbursements to wife was not necessary for case to proceed fairly or for wife to be able toretain lawyer and fully present her case through trial — Motion judge saw no reason why wife could not sell parties’ jointly ownedVermont home to help in funding her legal costs — Her share of sale proceeds would be about $100,000 to 125,000 and husbandundertook to court his co-operation in any sale of that property — Nevertheless, as security against any award for disbursements,including legal costs, judge also made non-depletion order under

section 40 of Family Law Act (binding on husband’s bank) that husbandmaintain minimum balance of $500,000 in his registered retirement income fund with bank.

SUPPORT ORDERS — Interim support — Retroactive award — Grounds for making retroactive spousal support — Parties had beenlitigating for past 4 years — Wife (now 80 years old and suffering from dementia-Alzheimer’s type) was represented by son whomVermont probate court had appointed as her guardian — On his mother’s behalf, guardian then successfully applied to Vermont familycourt for divorce and spousal support order that was transmitted to Ontario for registration and enforcement against respondent“husband” about 1 year ago under Inter​juris​dictional Support Orders Act, 2002 — About 3 months ago, Vermont Supreme Courtoverturned divorce on technical ground that guardians have no legal standing to seek remedy as personal as divorce — When divorcecollapsed, so did support order (effectively nullifying Vermont spousal support order registered in Ontario), but Vermont Supreme Courtsuggested that guardian apply afresh for spousal support order — Instead of pursuing this remedy in Vermont, guardian applied directlyto Ontario Court of Justice where he made motion for interim spousal support (4 years retroactive) on wife’s behalf, interimdisbursements of $25,000 to cover wife’s anticipated legal fees and order to restrain husband from depleting his investment accounts —During argument of this motion, parties agreed that husband would pay to wife ongoing interim spousal support of $1,300 per month on“without prejudice” basis, subject to adjustment at trial — Motion judge realized that this was not typical request for retroactive interimsupport, as support issue had been actively litigated and had been subject of trial in Vermont — Arguably, wife had significant merit toher motion — Nevertheless, motion judge conducted detailed review of case law and carefully examined reasons and factors for makingand for not making interim retroactive award and finally chose to backdate interim support by 16 months, subject to adjustment by trialjudge — Interval of retroactivity was divided into 2 parts: 1.

First 10 months during which wife’s expenses were not subsidized through Medicaid (United States health program) — Motionjudge was presented with range of calculations under Spousal Support Advisory Guidelines for 2010 and chose mid-range levelof spousal support for those 10 months, namely $3,992 per month;2. Thereafter: Once Medicaid subsidy kicked in, wife’s monthly deficit was reduced to $1,300. STATUTES AND REGULATIONS CITED

Family Law Act, R.S.O. 1990, c. F-3 [as amended], subsection 33(4), clause 33(4)(b), clause 34(1)(

f) and

section 40. Family Law Rules, O. Reg. 114/99 [as amended], subrule 24(12). Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13. CASES CITED Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 236 N.R. 79, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740, 196 W.A.C.211, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1, , [1999] S.C.J. No. 14, 1999 Cars​well​BC 532. D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R.201, 391 A.R. 297, 61 Alta.

L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J.No. 37, 2006 Cars​well​Alta 976. Decker v. Fedorsen, 2010 ONCJ 618, [2010] O.J. No. 5661, 2010 Cars​well​Ont 9891 (Ont. C.J.). Denofrio v. Denofrio, , 72 R.F.L. (6th) 52, [2009] O.J. No. 3295, 2009 Cars​well​Ont 4601 (Ont. Fam. Ct.). Elgner v. Elgner, , 85 R.F.L. (6th) 51, [2009] O.J. No. 5269, 2009 Cars​well​Ont 7702 (Ont. S.C.); affirmed at Elgnerv. Elgner, 2010 ONSC 794, [2010] W.D.F.L. 3353, [2010] O.J. No. 562, 2010 Cars​well​Ont 1113 (Ont. Div. Ct.). Fisher v.

Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008] O.J. No. 38,2008 Cars​well​Ont 43 (Ont. C.A.). Hubbard (Gore-Hickman) v. Gore-Hickman, 2005 SKQB 265, 266 Sask. R. 192, [2005] 11 W.W.R. 489, 19 R.F.L. (6th) 55, [2005] S.J.No. 383, 2005 Cars​well​Sask 402 (Sask Q.B., Fam. Div.). Kerr v. Baranow, 2011 SCC 10, 411 N.R. 200, 14 B.C.L.R. (5th) 203, [2011] 3 W.W.R. 575, 328 D.L.R. (4th) 577, 64 E.T.R. (3d) 1,[2011] S.C.J. No. 10, 2011 Cars​well​BC 240. Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J.

No. 386, 2007 Cars​well​Man 422 (Man.Q.B.). Lakhani v. Lakhani, , 43 R.F.L. (5th) 125, [2003] O.J. No. 4041, 2003 Cars​well​Ont 3928 (Ont. S.C.). M.(D.R.) v. M.(R.B.), 2006 BCSC 1921, 63 B.C.L.R. (4th) 331, [2006] B.C.J. No. 3299, 2006 Cars​well​BC 3177 (B.C.S.C.). Robles v. Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009 Cars​well​BC 2239(B.C.S.C.). Rosen v. Rosen, , 136 A.C.W.S. (3d) 327, 18 O.F.L.R. 151, [2005] O.J. No. 62, [2005] O.T.C. 31, 2005 Cars​well​Ont 68(Ont. Fam. Ct.). Salzmann v. Salzmann, , 50 R.F.L. (5th) 181, [2004] O.J.

No. 166, 2004 Cars​well​Ont 169 (Ont. Fam. Ct.). Stuart v. Stuart, , 24 R.F.L. (5th) 188, [2001] O.J. No. 5172, [2001] O.T.C. 965, 2001 Cars​well​Ont 4586 (Ont. Fam.Ct.). Trombetta v. Trombetta, 2011 ONSC 394, [2011] O.J. No. 281, 2011 Cars​well​Ont 318 (Ont. S.C.). Turk v. Turk, , 50 R.F.L. (6th) 211, [2008] O.J. No. 397, 2008 Cars​well​Ont 512 (Ont. S.C.). AUTHORS AND WORKS CITED Rogerson, Carol J. and D.A. Rollie Thompson: Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney Generalof Canada, July 2008). Lisa Eisen, agent for Esther L.

Lenkinski ................................................. counsel for the applicant Valois P. Ambrosino ............................................................................... counsel for the respondent For previous proceedings in Ontario, see: • dismissal of ex-husband’s motion to expunge registration of support order of Vermont Family Court transmitted to Ontario forenforcement: Samis (Guardian of) v. Samis, 2010 ONCJ 500, [2010] O.J. No. 5402, 2010 Cars​well​Ont 9546 (Ont. C.J.), perJustice Stanley B. Sherr; and• costs against ex-husband: Samis (Guardian of) v.

Samis, 2010 ONCJ 602, [2011] W.D.F.L. 2030, [2010] O.J. No. 5826, 2010Cars​well​Ont 10354 (Ont. C.J.), per Justice Stanley B. Sherr. For previous proceedings in Vermont, see:

• appeal setting aside order of Vermont Family Court: Samis v. Samis , 2011 Vt. 21 (Vt. S.C.), per Associate Justice Denise R. Johnson for the full court. JUSTICE S.B. SHERR 1: INTRODUCTION [ 1 ] The applicant is an 80-year-old woman who resides in a nursing home in Vermont, in the United States. She suffers from dementia-Alzheimer’s type.

Her son, Gregory Morecroft (Gregory), was appointed as her legal guardian to make financial and health decisions for her by the Vermont Probate Court (Probate Court) on 7 June 2007. [ 2 ] The respondent is an 83-year-old retired dentist who resides in Toronto Ontario. [ 3 ] The applicant married the respondent in Montreal, Quebec on 11 June 1983. This was a second marriage for both of them. They both have adult children from their first marriages. [ 4 ] The applicant is an American citizen and the respondent is a Canadian citizen.

They divided their time during their marriage between residences in Quebec and Vermont. [ 5 ] The parties separated in 2007 and have not reconciled since that time. [ 6 ] The applicant has brought a motion asking that the respondent pay her temporary spousal support retroactive to February of 2007 and interim disbursements of $25,000 to cover anticipated legal fees.

She further seeks an order restraining the respondent from depleting his investment accounts, an order directing that any spousal support ordered be paid from these investment accounts, and costs. [ 7 ] The respondent, in his responding material, asked that the applicant’s motion be dismissed.

He claims that the applicant is not entitled to spousal support as she released any right to claim for spousal support in a marriage contract signed on 9 June 1983, a renunciation of Family Patrimony agreement signed on 28 December 1990 and in an agreement reached in the Probate Court on 7 June 2007 (the stipulation agreement).

He brought his own motion seeking an order that the applicant return to him any monies collected from him by the Family Responsibility Office to date, together with interest. [1] Lastly, he seeks his costs of this motion. [ 8 ] During the course of this motion, the parties orally agreed that: (

a) On a temporary “without prejudice” basis, the respondent would pay the applicant ongoing spousal support of $1,300 per month. This would be subject to adjustment by the trial judge. (

b) There will be a temporary non-depletion order, requiring the respondent to maintain and segregate a minimum of $500,000 in his RRIF account with the CIBC in Toronto. This order is subject to any further order of the court. (

c) The case would be set for trial. Trial days were fixed in the fall of 2011. [ 9 ] The remaining issues for this court to decide on this temporary motion are: (

a) Should an order for temporary retroactive spousal support be made, and if so, when should it start and what amount should be ordered? (

b) Should the court award the applicant interim disbursements for anticipated legal fees? (

c) Should the court make an order returning money collected by the Family Responsibility Office to the respondent? (

d) If the court makes a support order, in what manner should it be paid? (

e) Costs. 2: HISTORY OF LEGAL PROCEEDINGS [ 10 ] The parties have been involved in constant litigation since early in 2007. Most of this litigation has taken place in Vermont. [ 11 ] In April of 2007, Gregory filed a motion in the Probate Court to be appointed as the applicant’s guardian. The respondent opposed this application. [ 12 ] The parties entered into the stipulation agreement on 7 June 2007 that was incorporated into an order of the Probate Court.

Gregory was appointed as permanent guardian for the applicant. [ 13 ] The stipulation agreement provided that neither party would be required to spend their liquid assets on the other’s support until they are divorced. They agreed to be financially responsible for their own care, support, and maintenance out of their own resources.

It was agreed that the parties would change ownership of their Vermont home (the Irasburg property) from joint tenancy to tenancy-in-common and share paying the expenses of this property until it was sold by the agreement of the parties or by court order. [ 14 ] Subsequently, Gregory, in his capacity as guardian for the applicant, issued a petition for divorce and made claims for property division and spousal support in the Vermont Family Court. [ 15 ] On 20 September 2007, the respondent brought a motion in the Vermont Family Court asking that the divorce petition be

dismissed on the basis that Gregory had no standing to bring it. The court dismissed the motion. [ 16 ] The respondent next moved for permission to appeal the dismissal of the motion. This motion was dismissed on 31 December 2007. [ 17 ] The respondent then appealed this decision to the Vermont Supreme Court. This appeal was denied on 22 February 2008. [ 18 ] While these proceedings were taking place in the Vermont Family Court, the respondent was moving in the Probate Court to have Gregory removed as the applicant’s guardian, or to modify the terms of the guardianship.

The respondent’s application to remove Gregory as guardian was dismissed and a cross-motion for injunctive relief by Gregory against the respondent, restricting his contact with the applicant, was granted on 17 April 2008. [ 19 ] On 13 May 2008, the respondent filed an appeal of the 7 June 2007 order of the Probate Court, which appointed Gregory as the applicant’s guardian.

The respondent did not perfect this appeal. [ 20 ] On 15 May 2009, the Vermont Family Court granted a divorce with the corollary issues of support and property division to be decided later. [ 21 ] The trial of the property and spousal support issues took place before the Vermont Family Court on 1 September 2009 and 9 October 2009. The court released its judgment on 16 December 2009 (the Vermont judgment). The court’s decision provided that the respondent pay the applicant the lump sum of $298,332 (Canadian dollars) for past and future spousal support obligations.

The order required that payment be made to the applicant from the respondent’s RRIF account with the CIBC in Toronto. [ 22 ] In January of 2010, the respondent appealed the Vermont judgment to the Vermont Supreme Court. The appeal was argued on 31 August 2010. [ 23 ] On 14 April 2010, the applicant moved in the Vermont Family Court to enforce the Vermont judgment.

The respondent moved at the same time for a stay of the spousal support portion of this judgment pending the appeal to the Vermont Supreme Court. [ 24 ] On 6 May 2010, the Vermont Family Court ruled that the spousal support portion of the judgment should not be stayed pending appeal. [ 25 ] On 30 June 2010, the respondent moved in the Vermont Family Court to stay the property portion of the Vermont judgment pending the appeal. This motion was also dismissed on 27 July 2010.

In making its ruling the court wrote: . . . no reasonable assurance of interim support pending appellate decision — court notes prior history of non-compliance with court orders. [ 26 ] On 29 July 2010, the respondent brought a contempt motion in the Probate Court against Gregory. This motion was dismissed on 23 September 2010. [ 27 ] On 18 August 2010, the respondent applied again in the Probate Court to remove Gregory as the applicant’s guardian.

This application is still pending. [ 28 ] The applicant registered the Vermont judgment in Ontario on 23 March 2010, pursuant to the Interjurisdictional Support Orders Act, 2002 , S.O. 2002, c. 13. Notice of the registered order was issued by this court on 28 May 2011 and served upon the respondent on 24 June 2011. The respondent subsequently brought a motion to set aside the registration of this order. [ 29 ] On 1 November 2010, I dismissed the respondent’s motion to set aside the registered order. See Samis (Guardian of) v. Samis , 2010 ONCJ 500 , [2010] O.J. No. 5402, 2010 Cars​well​Ont 9546 (Ont.

C.J.). [ 30 ] On 15 December 2010, I awarded the applicant her costs of $12,500 for the motion to set aside the registered order. See Samis (Guardian of) v. Samis , 2010 ONCJ 602 , [2011] W.D.F.L. 2030, [2010] O.J. No. 5826, 2010 Cars​well​Ont 10354 (Ont.

C.J.). [ 31 ] On 12 January 2011, the applicant brought a motion in this court asking that costs be enforceable as support by the Family Responsibility Office and for an order requiring the respondent to pay interest of 12% per annum on the spousal support ordered by the Vermont Family Court. [2] [ 32 ] On 15 February 2011, the respondent sought an adjournment of the applicant’s motion. The applicant opposed this request. The adjournment was granted on the issue of whether post-judgment interest should be applied to the Vermont judgment.

An order was made that the costs order be enforceable as support by the Family Responsibility Office. [ 33 ] On 18 February 2011, the Vermont Supreme Court granted the respondent’s appeal of the Vermont judgment. The court found that, under the law of Vermont, a legal guardian did not have the authority to commence a petition for divorce. In light of this finding, the court did not see the need to address the substantive issues of property and spousal support. The court wrote at paragraph [17] of its decision: [3] [17] . . .

Insofar as wife’s guardian has had difficulty obtaining financial support and cooperation from husband, guardian may petition the family division for an order of support or another appropriate order. Because we reverse the grant of divorce, we need not reach husband’s additional arguments regarding property division and spousal maintenance. [ 34 ] The applicant subsequently moved before the Vermont Supreme Court to review this decision. This motion was dismissed.

[35] The appeal decision from the Vermont Superior Court had the effect of nullifying the order of the Vermont judgment thatwas registered in Ontario. On 23 February 2011, the applicant withdrew her motion for the inclusion of post-judgment interest on thisjudgment. [36] On 2 March 2011, the applicant issued the current motion returnable on 22 March 2011. On the return date, therespondent sought an adjournment that was opposed by the applicant. The respondent indicated that he may make jurisdictionalchallenges to the applicant’s ability to bring her motion.

The adjournment was granted to give the respondent time to properly respond tothe applicant’s motion. Two dates were set up — one to argue the possible jurisdictional challenges, the second to deal with this motion.

Timelines were ordered for the filing of material. [37] The respondent subsequently waived any jurisdictional challenge and the court date reserved for this purpose wasvacated. 3: TEMPORARY SPOUSAL SUPPORT 3.1: Position of the Parties [38] The parties agreed during the argument of this motion that the respondent would pay the applicant temporary ongoingspousal support of $1,300 per month on a “without prejudice” basis, subject to adjustment at trial.

This sum represents the differencebetween the applicant’s current monthly expenses and the amount that she is receiving from Social Security benefits in the United States. [39] The applicant asks that the court start the support payment of $1,300 per month on 1 January 2011 and, in addition, toorder temporary retroactive spousal support in the sum of $6,000 per month for the period from 1 February 2007 until 31 December2010. [40] The applicant argues that the respondent has unreasonably resisted all efforts to provide for her support and care.

Sheclaims that the respondent has flagrantly breached his obligations under the stipulation agreement filed with the Probate Court. Shestates that she has exhausted all of her liquid assets through the multiple legal proceedings in Vermont, in particular, due to the unmeritedapplications by the respondent in the Probate Court to challenge the guardianship order. She submits that she now has significant debtand is in desperate need of support. [41] The respondent asks this court only to order ongoing temporary spousal support on this motion.

He argues that the issuesof entitlement and retroactive spousal support should be decided by the trial judge. He submits that the applicant is not entitled tospousal support since their financial affairs were always separate and she released any claims for spousal support in the marriage contractsigned on 9 June 1983, the Renunciation of Family Patrimony agreement dated 28 December 1990 and in the stipulation agreementdated 7 June 2007. He also argues that Gregory has mismanaged the applicant’s assets and, save for that, the applicant would haveadequate capital for her support.

He says that he is also willing to sell and divide the proceeds of the Irasburg property that has a valueof about $250,000 and that the applicant can use these funds for her support. [42] At the outset of the motion, the respondent argued that the motion should not proceed since the motion was not urgentand no case conference had been held in the matter. He relied on Rosen v. Rosen, , 136 A.C.W.S. (3d) 327, 18 O.F.L.R.151, [2005] O.J. No. 62, [2005] O.T.C. 31, 2005 Cars​well​Ont 68 (Ont. Fam. Ct.). This argument was a non-starter. The matter wasurgent.

The applicant had been unsuccessfully chasing support from the respondent for a long time. She was out of money. Therespondent had not voluntarily paid any support and, in his material, it was clear that he was not prepared to start making supportpayments now. It was not until we were well into the argument of the motion that he agreed to pay ongoing temporary spousal supportof $1,300 per month. 3.2: Legal Considerations [43] In Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 Cars​well​-Man 422 (Man.

Q.B.), the court set out the following principles in dealing with temporary spousal support motions: 1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial. 2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party sufferedeconomic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge. 3.

Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as theclaimant is able to present a triable case for economic disadvantage. 4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case inits entirety must await a final hearing. [44] In Robles v. Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009Cars​well​BC 2239 (B.C.S.C.), the court added the following considerations: 1.

On interim support motions, needs and ability take on greater significance. 2. On interim motions, the need to achieve self-sufficiency is of less importance. 3. Interim support should be ordered within the range of the Spousal Support Advisory Guidelines, (Ottawa: Ministerof Justice and Attorney General of Canada, July 2008), unless exceptional circumstances dictate otherwise. 4. Interim support should only be ordered where a prima facie case for entitlement has been set out. [45] This court has jurisdiction to make a retroactive spousal support order. Clause 34(1)(

f) of the Family Law Act, R.S.O.1990, c. F-3, as amended, reads as follows:

34. Powers of court.—

(1) In an application under

section 33, the court may make an interim or finalorder, . . . (

f) requiring that support be paid in respect of any period before the date of the order; . . . [46] Many courts have ordered temporary retroactive spousal support where the “circumstances of the case justify immediaterelief with some retroactive award of support.” See Lakhani v. Lakhani, , 43 R.F.L. (5th) 125, [2003] O.J. No. 4041,2003 Cars​well​Ont 3928 (Ont. S.C.), at paragraph [16]; Dickie v. Dickie, , 17 R.F.L. (5th) 304, [2001] O.J. No. 2885,2001 Cars​well​Ont 2551 (Ont. S.C.); Elgner v. Elgner, 2010 ONSC 794, [2010] W.D.F.L. 3353, [2010] O.J. No. 562, 2010 Cars​well​Ont1113 (Ont. Div. Ct.); Trombetta v.

Trombetta, 2011 ONSC 394, [2011] O.J. No. 281, 2011 Cars​well​Ont 318 (Ont. S.C.); and Turk v.Turk, , 50 R.F.L. (6th) 211, [2008] O.J. No. 397, 2008 Cars​well​Ont 512 (Ont. S.C.). [47] Other courts have been disinclined to back-date temporary support to a date prior to the filing of the motion because ofthe limited evidence available in proceedings for temporary relief, which are based on affidavit evidence. In Hubbard (Gore-Hickman)v. Gore-Hickman, 2005 SKQB 265, 266 Sask. R. 192, [2005] 11 W.W.R. 489, 19 R.F.L. (6th) 55, [2005] S.J. No. 383, 2005 Cars​well​-Sask 402 (Sask Q.B., Fam.

Div.), the court wrote at paragraph [23]¶8: 8. . . . Retroactive support can arise on an interim application. Interim applications, by their verynature, are meant to put in place temporary measures pending trial or settlement. They are notmeant to determine the ultimate issues between the parties. Courts on interim applications, forthe most part, are dealing with affidavit evidence that is often incomplete and contradictory. There is no opportunity for either party to cross-examine the other or adduce furtherinformation that may very well sway the ultimate determination.

If parties do not proceed withtheir application beyond the interim order stage, one must assume they are satisfied with theterms of that order. The fact some people never proceed further is not justification for courts todecide ultimate issues of retroactive support on interim applications. Requests for retroactiveorders are more properly dealt with at trial or after a hearing where all relevant evidence can beadduced.

Variation applications result in final orders and judges dealing with such applicationscan order the parties be cross-examined on their affidavits or can order viva voce evidence. [48] The respondent relied on my decision in Decker v. Fedorsen, 2010 ONCJ 618, [2010] O.J. No. 5661, 2010 Cars​well​Ont9891 (Ont. C.J.), where I declined to make a temporary retroactive spousal support order. However, that case is distinguishable from thecase before the court. The payor in Decker v. Fedorsen had already made substantial spousal support payments, perhaps exceeding thosethat would be awarded as retroactive support.

I determined that the trial judge would be in the best position, with a full evidentiaryrecord, to assess this issue. Here, the respondent was refusing to pay spousal support and was seeking the repayment of money alreadycollected from him by the Family Responsibility Office. [49] The leading case on retroactive child support is D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry;Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006]10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J.

No. 37, 2006 Cars​well​Alta 976. (referred to as “D.B.S.”). At paragraph [133] of D.B.S., the Supreme Court of Canada held that, in determining whether to make aretroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must bebalanced with the need for fairness and flexibility. The court listed the following factors for consideration and provided that there is nopriority among them; none are decisive and all should be considered:

(1) Has the applicant provided a reasonable excuse for delay in applying to court?

(2) Conduct of the payor

(3) Circumstances of the child

(4) Hardship for the payor [50] The Supreme Court in Canada in Kerr v. Baranow, 2011 SCC 10, 411 N.R. 200, 14 B.C.L.R. (5th) 203, [2011] 3 W.W.R.575, 328 D.L.R. (4th) 577, 64 E.T.R. (3d) 1, [2011] S.C.J. No. 10, 2011 Cars​well​BC 240, recently decided that D.B.S. factors apply, asmodified, for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child). The court found that thereis no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation tolook out for the separated spouse’s legal interests.

Thus, concerns about notice, delay and misconduct generally carry more weight inrelation to claims for spousal support. The court found that D.B.S. emphasized the need for flexibility and a holistic view of each matteron its own merits and that the same flexibility is appropriate when dealing with retroactive spousal support.[4] [51] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47R.F.L. (6th) 235, [2008] O.J. No. 38, 2008 Cars​well​Ont 43 (Ont.

C.A.), stated that the Spousal Support Advisory Guidelines (SSAG),while only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement is established. They have beenendorsed as ideal for use on temporary support motions. See D.R.M. v. R.B.M., 2006 BCSC 1921, 63 B.C.L.R. (4th) 331, [2006] B.C.J.No. 3299, 2006 Cars​well​BC 3177 (B.C.S.C.). 3.3: Financial Circumstances of the Parties [52] The applicant had approximately $715,000 in assets when Gregory applied to be her guardian in 2007.

This money isnow gone.[5] [53] The applicant has required significant personal care and retained private nursing services to assist her in her own homewhile she could manage there. She lived in the Irasburg property until July of 2010, when she moved into the Shard Village nursing

home. She continues to reside at Shard Village. [ 54 ] From 2007 to 2009, the applicant spent the sum of $144,700 on nursing and medical expenses. When she moved into Shard Village in July of 2010, she was required to pay the nursing home about $4,800 per month. She has paid almost all of the expenses of the Irasburg property since 2007 as the respondent has failed to pay his share, as required, in the stipulation agreement.

She also paid off the outstanding mortgage of $25,000 on this property. [ 55 ] Due to the significant downturn in the stock market in the United States, the applicant’s investments declined by close to $200,000 from 1 January 2007 until 31 December 2009. [ 56 ] The applicant incurred almost $200,000 in legal expenses from 1 January 2007 until 31 December 2009, arising out of the constant litigation between the parties in Vermont. [ 57 ] The applicant’s expenses have been approved by the Probate Court. [6] [ 58 ] The applicant’s only source of income after the separation in 2007 was from the interest on her investments.

She became eligible for Social Security and Quebec Pension Plan benefits when she was granted a divorce by the Vermont Family Court in May of 2009. She has been receiving $1,334 per month from Social Security and $208 per month from the Quebec Pension Plan since that time. Now that the divorce order has been overturned, she will likely lose her entitlement to payments under the Quebec Pension Plan. It remains uncertain how the overturning of her divorce will affect her entitlement to Social Security benefits.

She has continued to receive these benefits and, for the purpose of this motion, the court will assume that this will continue to be the case. [ 59 ] In February of 2011, the applicant was approved for Medicaid coverage retroactive to November of 2010. This significantly subsidized many of her expenses and reduced her monthly budget deficit to $1,300. [ 60 ] The respondent receives Old Age Security and Canada Pension Plan payments. He has an RRIF of slightly over 1.1 million dollars with the CIBC.

He is required to withdraw a minimum amount each year from the RRIF. [ 61 ] The respondent only provided income tax information up until 2009. The applicant provided evidence that established to the court that, based on the minimum amount that the respondent would have been required to withdraw from his RRIF in 2010, the respondent’s 2010 income from all sources was about $110,800. 3.4: Analysis [ 62 ] This is not a typical request for temporary retroactive support. The spousal support issue has been actively litigated since 2007.

A trial was heard on this issue, together with an appeal of this decision. [ 63 ] The applicant has demonstrated that there is significant merit to her motion. This court gave strong consideration to making a temporary retroactive support order considerably in excess of the amount it ultimately decided to make. 3.4(a): Reasons for Caution in Making a Retroactive Award [ 64 ] The respondent was able to persuade the court to exercise some caution in making its retroactive support order. There are some contentious issues that would benefit from a full hearing of the evidence.

These contentious issues are set out below. [ 65 ] The respondent argues that the applicant has waived her entitlement to spousal support in a series of agreements. The first agreement is a marriage contract that the parties executed on 9 June 1983 in Montreal. The parties disagree over whether the agreement includes a final release of spousal support. This is a simple one page agreement.

The operative clause reads as follows: The parties shall be separate as to property under the provisions of the Civil Code of the Province of Quebec and shall not be liable for each other’s obligations. [ 66 ] On 28 December 1990, the parties executed a second agreement in front of a notary called a “Renunciation of Family Patrimony.” This is a very short document. The agreement says: In conformity with

section 42 of La Code du Quebec . . ., the appearers intend not to be subject to sections 462.1 to 462.13 of the Civil Code of Quebec relating to the Family Patrimony. The appearers request the undersigned notary to notify the present renunciation to the Central Registry of Matrimonial Regimes. The court received no evidence interpreting the legal meaning of this agreement. Not surprisingly, the respondent states that it is a complete spousal support release and the applicant disagrees.

Her position is that the agreement only pertains to property issues. [ 67 ] The final agreement upon which the respondent relies is the stipulation agreement dated 7 April 2007. This agreement contains the following clauses: 6. The parties acknowledge that Catherine S. Samis maintains her own liquid assets and that Philip L. Samis maintains his liquid assests. 7. While they are married, Catherine S. Samis shall not be required to spend her liquid assets on the care or support of Philip L. Samis. While they are married, Philip L.

Samis shall not be required to spend his liquid assets on the care or support of Catherine S. Samis. . . .

13. Philip L. Samis shall not have any financial responsibility for such temporary care, or the planning of such care, nor shall he receive services from the caregivers of Catherine S. Samis. The guardian will provide Philip L. Samis with the

schedule of caregivers. Philip L. Samis will not interfere with the scheduling or delivering of caregiving by the caregivers to Catherine S. Samis. . . . 14. Philip L. Samis shall be financially responsible for his own care, support and maintenance out of his own resources including the maintenance of his primary residence in Canada. Catherine S. Samis shall be financially responsible for her own care, support, and maintenance out of her own resources. [ 68 ] The applicant argues that the court should disregard the releases in the stipulation agreement.

She claims that the respondent fundamentally breached this agreement by failing to co-operate with her financial planning, to re-title the Irasburg property as tenants-in-common, or to pay his share of the Irasburg property’s expenses, as required by the agreement. These breaches of the agreement were essentially verified in the decision of the Probate Court dated 17 April 2008. [ 69 ] The applicant also raises the argument that the releases in the stipulation agreement were only intended to be operative until the parties were divorced (paragraph 7 of the stipulation).

She argues that the respondent should not be entitled to rely on a release that is only operative until divorce, while at the same time frustrating her ability to obtain this divorce. [ 70 ] The applicant also argues that the Vermont Family Court ordered significant spousal support after a full hearing, with the evidence of the releases before it. [7] She points out that the decision was only overturned on the technical ground that the guardian had no authority to petition for divorce and that the court invited her to return to the Vermont Family Court for the support and property issues.

The respondent argued in response that the decision of the Vermont Family Court is not binding on this court, since it was overturned and that, further, even that court only ordered six months of retroactive spousal support. [ 71 ] At this point, it appears to this court that, if the applicant is found to be entitled to retroactive spousal support, the releases contained in the stipulation agreement could have an impact on the start date of any order. [ 72 ] Neither counsel was able to provide evidence to the court about the impact that a significant retroactive payment would have on the applicant’s entitlement to Medicaid.

Will this mean that her expenses will revert to the previous $6,000 per month deficiency claimed by the applicant? While this would not and should not disentitle the applicant to retroactive support, this information and the income tax implications of any order would be very useful to the court in crafting a final order. [8] [ 73 ] There is also an issue how well the applicant’s resources have been handled. She has gone through $700,000 of assets in just over three years.

On a temporary basis, the court accepts the applicant’s explanation for the depletion of her resources, as the accounting has been approved by the Probate Court, she has been involved in multiple legal proceedings and she has had significant medical expenses. However, the respondent did not participate in the Probate Court’s approval of these accounts and he may elicit evidence to support his contention of mismanagement of funds at trial. This might affect the quantum of any spousal support order. [ 74 ] The applicant does not have an immediate need for the full retroactive award that she seeks.

This court is able to accommodate a trial within a reasonably short time and fixed dates have been set for trial in the fall of 2011. 3.4(b): Why a Retroactive Temporary Support Order is Appropriate [ 75 ] There are compelling reasons to make an order for temporary retroactive support. The court had the benefit of significant evidence and decisions of other courts that have dealt with the parties.

On the basis of the evidence provided to date, it appears that the applicant has a strong prima facie case for entitlement for spousal support, including a sizeable claim for retroactive spousal support. [ 76 ] While leaving the ultimate determination of this issue to the trial court, it is highly questionable, at this stage, whether either the term relied upon by the respondent in the 1983 marriage contract or the release of family patrimony rights in the 1990 agreement constitutes a final spousal support release.

The parties provided no expert evidence to assist the court in interpreting these provisions on this motion. Any ambiguity will likely be interpreted against the respondent, who is relying upon these purported releases. The court notes that this issue was squarely before the Vermont Family Court and the only expert evidence it received was from a lawyer in Quebec who testified that neither of these clauses constituted a spousal support release. [ 77 ] It is also highly questionable whether the releases in the stipulation agreement will disentitle the applicant to spousal support.

The Probate Court confirmed that the respondent has not complied with substantial aspects of this agreement. It will be difficult for the respondent to rely upon the provisions of the stipulation agreement that are only to his advantage.

There is also a compelling argument to be made that the releases only apply until the parties are divorced, that the respondent has thwarted the applicant’s ability to obtain a divorce and cannot rely on the releases as bars to spousal support. [ 78 ] It also appears, at this preliminary stage, that the applicant would have a strong argument that subsection 33(4) of the Family Law Act is applicable. This subsection reads as follows:

(4) Setting aside domestic contract.— The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under subsection (1) although the contract or agreement contains an express provision excluding the application of this section, (

a) if the provision for support or the waiver of the right to support results in unconscionable circumstances; (

b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(

c) if there is default in the payment of support under the contract or agreement at the time theapplication is made. [79] The parties were together for 24 years. Not including the Irasburg property, the respondent has over one million dollarsin assets. The respondent has depleted all of her capital. The respondent has income of over $110,000 per year. The applicant onlyreceives Social Security payments of about $16,000 per year.

There is a prima facie case that any waiver of support has resulted inunconscionable circumstances and should be set aside.[9] [80] The applicant also appears to have a viable argument that Medicaid is the equivalent of an allowance of public money andthat this gives the court the discretion to set aside any spousal support release under clause 33(4)(

b) of the Family Law Act.[10] [81] This court has the ability to make a temporary support order even in the face of a spousal support release (and this court isnot making a finding that a valid spousal support release exists). See Salzmann v. Salzmann, , 50 R.F.L. (5th) 181,[2004] O.J. No. 166, 2004 Cars​well​Ont 169 (Ont. Fam. Ct.); and Denofrio v. Denofrio, , 72 R.F.L. (6th) 52, [2009]O.J. No. 3295, 2009 Cars​well​Ont 4601 (Ont. Fam.

Ct.). [82] I will turn next to the D.B.S. factors. [83] It is clear that the applicant has been actively seeking spousal support from the respondent since she made her applicationfor this relief in the Vermont Family Court in 2007. There has been no delay in seeking support that would militate against the makingof a retroactive order. [84] The applicant has asked the court to apply issue estoppel and accept the findings of blameworthy conduct by therespondent that were contained in the Vermont judgment. I am disinclined to do so. This decision was overturned.

While the VermontSuperior Court overturned this decision on technical grounds, I do not believe that any of the findings are binding on this court.[11] Ihave only used that decision for context and to examine what evidence was before the Vermont Family Court at trial. [85] However, there are findings in other Vermont decisions upon which I can and will rely.

On 17 April 2008, the ProbateCourt made a finding that the respondent had not co-operated in the applicant’s financial planning and with the maintenance of theIrasburg property (requiring the applicant to maintain it on her own) in breach of the stipulation agreement. This is blameworthyconduct. On 30 June 2010, in dismissing the respondent’s motion to stay the Vermont judgment, the court endorsed that the respondenthad a history of non-compliance with court orders and that there was no reasonable assurance of interim support being paid. Thisdecision was not appealed and this finding can be relied upon.

This is blameworthy conduct. It was also instructive to read the ProbateCourt’s decision of 17 April 2008 where it made the following observations: . . . Philip was also reluctant to take the actions necessary to provide adequate care for Catherine so thatshe could remain in her Irasburg home, such as obtaining the services of home health workers and careproviders, until Gregory and his siblings intervened.

It was in the context of Philip’s inconsistentbehavior, threats and failure to recognize and take appropriate steps to meet Catherine’s needs that thestipulation was negotiated [Pages 3and 4 of the decision]. . . . . . . Taken as a whole, the evidence before the Court indicates that Philip demonstrates a remarkablelack of common courtesy and concern for the impact that his behaviors, attitude and lack of insight haveupon Catherine, which in turn fuels what sometimes appears in isolation to be oversensitivity onGregory’s part [Page 6 of the decision]. . . .

It is evident from the testimony at the hearing that the other points addressed by the motion forinjunctive relief either originate in specific behaviors by Philip which are detrimental to Catherine in thecontext of her condition and needs or pertain to the need for appropriate planning to assure thatCatherine receives the benefits to which she is entitled without jeopardizing her Medicare coverage. Inisolation, some of the matters would appear to be obvious common sense items.

However, Philip, asindicated above, has demonstrated a pattern of behavior that renders the cumulative effect of the mattersin issue significant [Pages 6 and 7 of the decision]. [86] There appears to be merit in the applicant’s submission that the respondent has caused her unnecessarily to expend legalfees for the legal proceedings in the Probate Court and to deplete her capital. [87] The respondent has not voluntarily paid any spousal support to the applicant despite her requests. [88] The applicant has had the need for spousal support and the respondent has had the ability to pay it.

Her claim has a non-compensatory foundation. See Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 236 N.R. 79, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, [1999]8 W.W.R. 740, 196 W.A.C. 211, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1, , [1999] S.C.J. No. 14, 1999 Cars​well​BC 532. [89] The applicant’s financial circumstances have seriously been affected by the lack of spousal support. She has had todeplete her capital to support herself. This was a critical factor in ordering temporary retroactive spousal support in Elgner v. Elgner,, 85 R.F.L. (6th) 51, [2009] O.J. No. 5269, 2009 Cars​well​Ont 7702 (Ont.

S.C.),[12] where the court wrote atparagraph [33]:

[33] In the case at bar, the parties spent almost two years after separation trying to resolve theirdifferences before the Wife issued her Application on June 22, 2009. She has had to substantiallydeplete her capital to meet her expenses. The Ontario Court of Appeal said in Goeldner v. Goeldner,, 2005 Cars​well​Ont 83 (C.A.), in paragraph 8, “The wife was not obliged to deplete hercapital by using her inheritance to support herself.” I adopt that reasoning in the case at bar. Here theWife had no income.

While she received generous amounts of capital, even if all of that were invested,it would never produce an income that could even meet her expenses after separation. She thereforeshould not have to deplete a large percentage of her capital for her daily needs. [90] The applicant has now gone into significant debt. She owes $40,000 in legal fees and $5,000 to Shard Village. [91] The respondent argues that a temporary retroactive order should not be made, since, if the trial court decides that theapplicant is not entitled to retroactive support, he will then have to collect the overpayments from the applicant.

This is not an attractiveargument when a recipient has established a strong prima facie case for retroactive support on a temporary motion. Why should theapplicant solely bear the risks associated with collection of support after trial? Why should the respondent have exclusive use of thesefunds pending trial?

At this point, the evidence indicates that, if this case proceeds to trial, it is far more likely that it is the respondentwho will be required to pay a further (and sizeable) retroactive support payment to the applicant, rather than the respondent having tocollect an overpayment of support from the applicant. 3.5: Decision on Temporary Spousal Support [92] Weighing all of these factors, this court is going to make a temporary support order retroactive to 1 January 2010. Thisorder will be subject to adjustment by the trial judge. [93] The court will make orders for two separate periods.

The first period is from 1 January 2010 until 31 October 2010. During this period, the applicant did not receive subsidization of her expenses through Medicaid. The second period is from and after 1November 2010, when, because of the Medicaid subsidization, the applicant’s monthly deficit was reduced to $1,300 per month. [94] The SSAG calculations provided to me for 2010 show a low-end range of spousal support of $3,422, mid-range of $3,992and high-end range of $4,563.

It appears that the applicant does not have to pay taxes on spousal support in the United States until herincome reaches $80,000 per annum.[13] However, this consideration (which would point towards ordering the low-range SSAG level)is offset by the significant medical expenses that the applicant incurred during this period.

Taking these competing factors and the needfor caution into consideration, I will order the mid-range SSAG level of spousal support for the period from 1 January 2010 through to31 October 2010 — $3,992 per month. [95] The temporary spousal support payment will change to $1,300 per month as of 1 November 2010. [96] The respondent deposed that the Family Responsibility Office has taken approximately $20,000 from him pursuant to theorder of the Vermont Family Court that was registered in Ontario.[14] The applicant acknowledges receiving only $9,900 and claimsthat this was on account of the costs order made in Ontario.

I was not provided with a statement of arrears from the FamilyResponsibility Office to verify what has been collected. Counsel speculated that the Family Responsibility Office is holding theadditional money collected from the respondent pending further court order. If in fact the Family Responsibility Office is holding thebalance claimed by the respondent, it is directed to release these funds immediately to the applicant. The sum of $2,600 shall first beapplied to the balance of my costs order and the balance to this retroactive spousal support order.

I am not inclined to otherwise dictatethe form of the payment of this retroactive support award. [97] I am aware that any money taken from the respondent’s RRIF is taxed at a 30% rate. Notwithstanding this, I find thatpaying the balance of this retroactive award will not create an undue hardship for him (the last of the D.B.S. factors).

I also note that therespondent could take out a loan to pay the remaining balance of this retroactive award (after payment of the money held by the FamilyResponsibility Office) to reduce the tax implications of withdrawing the funds from his RRIF. 4: INTERIM DISBURSEMENTS [98] The applicant seeks interim disbursements of $25,000. Her position is that she needs these monies to fund counsel fortrial. [99] This court has the jurisdiction to award interim disbursements pursuant to subrule 24(12) of the Family Law Rules, O.Reg. 114/99, as amended, which reads as follows:

(12) Payment of expenses.— The court may make an order that a party pay an amount of money toanother party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. [100] The principles that courts have been applying to determine whether to order interim disbursements pursuant to this subruleare set out in Stuart v. Stuart, , 24 R.F.L. (5th) 188, [2001] O.J. No. 5172, [2001] O.T.C. 965, 2001 Cars​well​Ont4586 (Ont. Fam. Ct.), as follows: 1) The ordering of interim disbursements is discretionary: Airst v. Airst, [1995] O.J. No. 3005; Hillv. Hill (1988), (ON SC), 63 O.R. (2d) 618 (H.C.J.) and Lossing v.Dmuchowski, [2000] O.J. No. 837.

2) A claimant must demonstrate that, absent the advance of funds for interim disbursements, theclaimant cannot present or analyze settlement offers or pursue entitlement: Hill v. Hill (1988), (ON SC), 63 O.R. (2d) 618 (H.C.J.) and Airst v. Airst, [1995] O.J. No. 3005. 3) It must be shown that the particular expenses are necessary: Lossing v. Dmuchowski, [2000]O.J. No. 837. 4) Is the claim being advanced meritorious? Lynch v. Lynch (1999), 1 R.F.L. (5th) 309 andRandle v. Randle (1999), 1999 ABQB 954 , 3 R.F.L. (5th) 139. 5) The exercise of discretion should be limited to exceptional cases: Organ v.

Barnett (1992), (ON SC), 11 O.R. (3d) 210 (Ont. Gen. Div.). 6) 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. 7) Monies might be advanced against an equalisation payment: Zagdanski v.

Zagdanski, (ON SC), 55 O.R. (3d) 6, 2001 Cars​well​Ont 2517. 8) The court must consider which of these principles adhere to the primary objective of the FamilyLaw Rules. 9) The court interprets the new Family Law Rules to require the exercise of the discretion in rule24(12) on a less stringent basis than the cases that call for such only in exceptional cases. Thediscretion should be exercised to ensure all parties can equally provide or test disclosure, makeor consider offers or possible go to trial.

Simply described, the award should be made to levelthe playing field. 10) An order under subrule 24(12) should not immunise a party from cost awards. The order is toallow the case to proceed fairly and should not be such that a party feels a licence to litigate. 11) Certainly, the proof of the necessity of interim disbursements would be critical to the successfulclaim. The claimant must clearly demonstrate that the disbursements are necessary andreasonable given the needs of the case and the funds available.

In particular, if an expert is thesubject of a requested disbursement, the claimant must demonstrate there is a clear need for theservices of said expert. 12) The claimant must demonstrate that he or she is incapable of funding the requested amounts. 13) The claim or claims being advanced in the case must be meritorious as far as can be determinedon the balance of probabilities at the time of the request for disbursements. 14) The order for interim disbursements should not be limited to cases where it would be taken outof 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 familythat has not acquired assets. It may be that a party with a minimal income stream and no liquidassets needs disbursements to test evidence that might lead to him or her resisting anequalisation order. The levelling of the playing field should not be limited to those with anexpected equalisation payment. [101] I have considered all of these factors and find that this is not an appropriate case for interim disbursements.

I find that anorder for payment of interim disbursements to the applicant is not necessary for the case to proceed fairly or for the applicant to be ableto retain counsel and fully present her case through trial. [102] I am not satisfied at this point that the applicant cannot sell the Irasburg property to assist her in funding her legal costs. Her share of the sale proceeds would be approximately $100,000-125,000.

At the motion, the respondent indicated that he would co-operate in any sale of the Irasburg property. [103] This court will also be making an order preserving a minimum of $500,000 in the respondent’s RRIF with the CIBC. Ifthe applicant is successful at trial, this amount should be more than sufficient to cover any award, including legal costs. 5: CONCLUSION [104] A temporary order will go on the following terms: (

a) The respondent shall pay the applicant periodic spousal support of $3,992 per month commencing on 1 January2010. (

b) The periodic spousal support payment set out above shall change to $1,300 per month, commencing on 1November 2010. On an ongoing basis, this payment shall be due on the 1st day of each and every month. (

c) These support payments are subject to adjustment by the trial judge. The entitlement of the applicant to spousalsupport remains in issue and this decision does not preclude the respondent from seeking a repayment of thesupport ordered at trial. His agreement to pay temporary spousal support on an ongoing basis is to be withoutprejudice to this argument. (

d) The respondent’s motion that monies collected from him by the Family Responsibility Office be returned isdismissed. (

e) The Family Responsibility Office is directed to pay any monies it is currently holding in this matter to theapplicant as follows: (

i) The sum of $2,600 to be applied to the payment of the balance of my costs order made on 15 December2010. (ii) The balance to be applied to the arrears created by this order.

(

f) Until further order of this court, there shall be a non-depletion order pursuant to

section 40 of the Family Law Act requiring the respondent to segregate and maintain a minimum balance in his RRIF with the CIBC in Toronto, in the amount of $500,000. The CIBC is ordered to comply with this order and shall not disburse monies out of this account that would reduce the total amount below $500,000, without further order of this court. [15] (

g) Support deduction order to issue. [ 105 ] In the event that either party seeks costs of this motion, they are to serve and file written submissions by 31 May 2011. Any response shall be served and filed by 10 June 2011. The submissions are not to exceed three pages, not exceeding any bill of costs or offer to settle. [ 106 ] The respondent has until 10 June 2011 to serve and file his answer/claim. [ 107 ] This has been a sad case. The parties have been involved in continuous litigation and have used up a substantial portion of their assets in this battle.

It is not too late for them to settle this case to ensure that both of them can live their remaining years comfortably and in peace. The respondent should accept that he will likely need to make a significant additional retroactive support payment and pay ongoing support. He can do this and still live comfortably. Gregory should accept that he is unlikely to come close to recouping all of the legal expenses incurred on behalf of his mother and that, in light of the releases contained in the stipulation agreement, asking that support be retroactive to February of 2007 may be unrealistic.

Both need to let go of the anger that this litigation has exacerbated and move on with their lives. I strongly recommend that the parties participate in mediation and work hard to resolve this case before their legal fees skyrocket any further. [ 108 ] I have set up a settlement conference for 4 August 2011 at 2 p.m. I expect both Gregory and the respondent to attend in person. [ 109 ] Lastly, I thank counsel for their excellent presentation of this motion.