“The Court has the jurisdiction to vary interim support orders.
In Lipson v. Lipson, 1972 CanLII 470 (ON CA), [1972] 3 O.R. 403, the Court of Appeal directed that motions to vary interim spousal support orders “were not to be encouraged and that it would take a substantial change in the circumstances before such an application would be permitted.”
As explained by the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, a motion to vary is neither an appeal nor an opportunity to re-litigate the prevailing Order. A motion to vary proceeds on the basis that the prevailing order was correct when it was made.
The parties provided case law setting out a variety of considerations which should be taken into account in determining whether a variation of an interim support order should be made including: a) whether the failure to vary the Order would cause the payor to suffer undue hardship; and b) whether continuation of the Order would be incongruous or absurd; Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636 at para 30 citing Pakka v. Nygard, 2004 CanLII 5071 (ON SC), [2004] O.J. No. 100 (Ont.S.C.J.) at para 5. The test is not whether I would have made the same Order.
As stated by Justice Chappel in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (Ont.S.C.J.):
20 The test that applied on a motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation. The onus on a party who seeks to vary a temporary support order rather than waiting until trial is a heavy one.”