Moorthy v. Haefele, 2010 ONSC 1109, [2010] W.D.F.L. 2134, [2010] W.D.F.L. 2135

In this decision delivered by Justice Ricchetti, from the Ontario Superior Court, the issue of interim interim (or temporary temporary) orders for support was discussed. The court optimally presented and applied the law to the facts of the case, thus providing a viable precedent for lawyers and judges considering said issue.

The facts offered are few and elusive. From what may be gathered the parties cohabited for 2 years prior to marrying in 1996. There were three children born of the marriage and the year of separation was slated as being 2007. Moreover, the respondent-Haefele was a high-income earner. It should be noted that there were some inconsistencies in determining the exact income amount. More specifically, the applicant-Moorthy claimed he received approximately $6.5 million a year from various interests in German business whereas the respondent countered that his income was $500,000 plus whatever amount he needed to pay taxes.

In addition to an order for interim spousal and child support, the wife sought retroactive support, an order for non-dissipation as well as the full disclosure of further documentation. The husband also brought a cross-motion for the adjournment of the wife’s motion for the purposes of questioning her on her materials.

The adjournment was granted to the husband as it was decided that there was no urgency to the wife’s motion since all her expenses (i.e. mortgage, children’s tuition, etc.) were being paid for by the respondent and would be until the motion was heard. However, Justice Ricchetti noted that the sole source of support available to the wife was access to a joint line of credit which could be easily controlled or reduced by her husband. As a result, and recognizing that the wife would be in need of some form of support, the judge decided to address the issue of support and imposed an order for interim interim support without prejudice to either party.

Justice Ricchetti looked to two previously decided cases from the Ontario Court of Appeal in order to ascertain the current state of the law. The first case Sugar v. Sugar stands for the proposition that in order to be granted interim interim support:

  • an applicant must show a prima facie case of need,
  • the respondent must have the ability to pay, and
  • the adjournment may result in a delay making the provision of support reasonable given the circumstances.

The second case relied on, Elliston v. Elliston, divulges the purpose of an order for interim interim support which is to prevent hardship to a spouse until the necessary material upon which the court can act can be procured. It is not a procedure which is to be invoked as a matter of course. Therefore, it is not readily or easily granted.

Justice Ricchetti reviewed all the evidence put forward and dismissed the amounts and proposed budgets adduced by the wife. Rather, he favored a proposal presented by the husband’s counsel and ordered a lump sum payment of approximately $200,000 for a period of 6 months. The husband was also required to continue to pay for all other expenses relating to the children and the matrimonial home.

Justice Ricchetti was satisfied that the amount ordered would avoid any hardship for the wife and children as it represented more than two times the wife’s monthly expenses in her financial statement or approximately the amount of her proposed budget or more than the amount of the minimum child support.

The issue of support would be re-visited 6 months later when the wife’s motion was scheduled to be heard.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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