No Appeal for Husband Paying $110,000 Per Month to Wife
Last year at this time, the Court made a temporary award against a husband which ordered him to pay his wife spousal support in the amount of $110,000.00 per month, pending their divorce hearing. He had an annual income of over $3 million; the wife had never worked during the course of their 33-year marriage.
Not surprisingly, in the time since that decision the husband has taken steps to appeal the initial award. Given that this was a temporary order, his first hurdle was to apply for permission (or “leave”) of the court, which he did in March of this past year.
Before that second court, he initially argued since this was a temporary spousal support order made under the Canadian federal Divorce Act, he should automatically be allowed to appeal it without needing the court’s permission, in keeping with rules governing federal proceedings.
The court didn’t buy it.
Instead – citing court-approved policy that appeals from temporary orders in family law matters are to be discouraged – the court applied the traditional test under Ontario law to see whether leave to appeal should be granted.
That test involves consideration, among other things, of whether there is either:
1) a “conflicting decision” by another Ontario judge or court; or
2) “good reason to doubt the correctness” of the initial order.
On the first branch of the test, the husband’s claim that the initial judge had not adhered to established legal principles was rejected. As to the second branch, the husband cited certain procedural and other deficiencies in the proceedings leading up to the order. These included the fact that in arriving at the $110,000 monthly sum, the judge ignored the Spousal Support Guidelines, misapprehended some facts relating to an estate freeze, disregarded certain tax implications, and wrongly took into account the financial needs of the wife’s sister.
Surprisingly – and despite the staggering amount of this unusually-high support award – the court refused to grant leave to appeal. The Court found that neither of the two tests were met, nor was the matter of such “general importance” to the public (as opposed to being important to this particular husband and wife) that the husband should be allowed the right to appeal at this stage.
As a result, the husband will continue to pay the wife $110,000 per month until their divorce finally winds its way through the legal system for final determination.
The initial decision awarding the $110,000 monthly spousal support can be found at: http://bit.ly/dPedIi
The decision reviewing the temporary support Order is: Elgner v. Elgner, 2009 CanLII 68827 (ON S.C.) and can be found at: http://bit.ly/hRjXW8