January 12, 2023 – Temporary Without Prejudice Orders: No Material Change Needed

“The applicant’s second argument is that a material change in circumstance is not required to vary a temporary without prejudice order. I was not directed to any authority that spoke to variation under s. 25(1) of the Family Law Act in these circumstances, however, I take guidance from those spousal support cases where the court looked at the question of whether a material change is needed to vary temporary without prejudice orders. See D. (E.) v. D. (D.), [2012] O.J. No. 5586, 2012 ONSC 6689, 2012 CarswellOnt 14841 (S.C.J.) and Kahsai v. Hagos, [2015] O.J. No. 3337, 2015 ONSC 3900, supp. reasons [2015] O.J. No. 4764, 2015 ONSC 5756 (S.C.J.) where the court held that the moving party was not required to meet the substantial change in circumstances test. I adopt that approach here. I also agree with and adopt the words of Price J. in Ceho v. Ceho, [2015] O.J. No. 4505, 2015 ONSC 5285 (S.C.J.), at para. 86 where he said, “The very expression ‘without prejudice’ is intended to preserve the position of each party. It would be rendered meaningless if the temporary temporary order, in fact, prejudiced the party who consented to it, by imposing on that party a higher threshold of proof in the future, and requiring him or her to prove a material change of circumstances.” Although Ceho was a custody case and the order in question was a temporary without prejudice consent order that the court regarded as a temporary temporary order, I find the words of Price J. equally applicable to the situation here. Each party had their reasons for consenting to the terms of Smith J.’s order, all of which were temporary and said to be without prejudice. If proof of material change is required at this stage of a proceeding, I fear it would dampen the usefulness of temporary without prejudice orders as important interim settlement tools that allow the parties to move forward with their case and their lives.”

         Hamilton v. Hamilton, 2021 ONSC 274 (CanLII) at 26