“In Laamanen v. Laamanen, 2005 CanLII 50808 (ON SC), [2005] O.J. 5823 (Ont. S.C.J.) at paras. 12 to 15 Justice Karakatsanis, as she then was, discussed the principles which should govern an advance of funds based on an equalization claim:
12 Although the husband characterized the request for a partial advance on an equalization payment as a motion for partial summary judgment, I prefer not to consider the request on that basis. The construct of a Rule 20 motion does not fit this context. The motion would raise issues of res judicata and would not resolve any issues or shorten the time at trial. The Ontario Court of Appeal in Ford Motor Company of Canada Limited v. Ontario Municipal Employees Retirement Board et al (1997), 1997 CanLII 1302 (ON CA), 36 O.R. (3d) 384, held that parties cannot move for partial judgment as soon as they can prove a minimum recovery, especially where it does not resolve an issue, or shorten trial time. Rule 20 does not involve any consideration of need for the funds or an ability to pay.
13 I prefer the approach of Lane J. in Zadanski v. Zadanski (2001), 2001 CanLII 27981 (ON SC), 19 R.F.L. (5th) 458, Lane J. referred to the difficulties in proceeding under Rule 20 for partial summary judgment and canvassed the cases where the Court had ordered partial advances on equalization. He found that the Court had jurisdiction in a proper case to make an interim order for the payment of an advance on the equalization payment. Although leave to appeal to Divisional Court was granted, [2002] O.J. No. 3415, the appeal was not pursued. By granting leave to appeal, one Superior Court Judge had some reservations about the correctness of that decision; however, numerous other judges of this Court have ordered advances, either as an advance on equalization payment, or for interim disbursements, or to be characterized by the trial judge. Where a minimum equalization payment is conceded, an advance can avoid an interim judicial determination on issues best dealt with at trial, thus avoiding the need for interim support determinations and interim disbursements.
14 In Haroun v Haroun, 2001 CanLII 28128 (ON SC), [2001] O.J. No. 2575 (S.C.J.), the motions judge refused to grant an advance on equalization because she was unable to determine a minimum equalization payment. In Armstrong v. Miller (11 January 2001, 5 April 2001) Toronto 00-GL-907 Toronto (S.C.J.) at paras 26 and 19 to 20 respectively, the motions judge refused to grant summary judgment where there was a great deal of confusion about fiscal issues; he was not prepared to accept an answer on cross-examination regarding a minimum payment as anything more than an estimate pending determination by fiscal and accounting experts. In this case, the minimum equalization payment was conceded by counsel.
15 The cases show that the Court may use its discretion to order an advance on equalization where 1) there is a reasonable requirement for the funds; 2) there is little doubt that the person will receive an equalization payment of at least that amount; and 3) it is just to do so in the circumstances, including the payor’s ability to pay.”