“There is no dispute that the Court retains a very limited discretion to vary a final order (and in particular, one obtained on consent of the parties) on a temporary basis. In the recent decision of S.H. v. D.K., 2022 ONSC 1203 (CanLII), the Divisional Court described the test for granting a temporary variation of a final order to be “stringent”, requiring any supporting evidentiary basis to be quite “compelling”.
The final order sought to be varied in the S.H. decision was a final parenting order, and not a final support order. Is the test for a temporary variation of a final support order (within a pending Motion to Change) some type of different animal?
Absent a settlement between the parties, the Applicant’s Motion to Change will ultimately result in a formal hearing. In the Toronto region, motions to change are no longer proceeding by way of trial, but will be heard as long motions going forward.
The jurisprudence relied upon by the Applicant to support her view that this Court has a more general discretion to vary final orders on a temporary basis is not helpful. During argument, counsel for the Applicant referred the Court to three decisions in support of her position. I have reviewed those three decisions and cannot find the necessary foundation to support the Applicant’s position.
In Gordon v. Guimont 2016 ONSC 4569 (CanLII) Justice Doyle granted a request to require a father to pay both retroactive and ongoing child support, together with an order sharing section 7 expenses. On my review of this decision, Justice Doyle was actually hearing the Motion to Change itself. This appears to be self-evident as Justice Doyle relied upon, inter alia, formal expert income valuation reports filed by both parties.
The Applicant also relies upon the decision of Justice Wolder in Bertram v. Murdock 2006 ONCJ 69 (CanLII). In Bertram, the mother sought a temporary order of child support and payment of section 7 expenses for the child of the marriage attending university at the time. There is nothing in the Bertram decision which relates to the within proceeding, as there was no Motion to Change before Justice Wolder who explicitly notes that the mother had commenced an application for child support.
Finally, the Applicant relies upon the decision of Justice Labrosse in Gorska v. Gorski 2015 ONSC 7522 (CanLII), in which the Court heard a motion by the mother for a temporary order for retroactive and ongoing child support together with payment of both retroactive and current section 7 expenses. Once again, Justice Labrosse was not faced with a situation where either party was bringing a Motion to Change.
In the within proceeding, the Applicant’s motion is essentially akin to a request for partial summary judgment, as the Applicant would obtain (at least in part) temporary relief which she seeks on a final basis in the face of a consent final order which still needs to be varied.
In what circumstances should, or more particularly can, the Court grant such temporary relief in the face of a pending Motion to Change?
Section 17(1) of the Divorce Act, R.S.C. 1985, c. 3 allows a judge of this Court to vary, rescind or suspend a support and/or parenting order. Section 17(4) of the Divorce Act provides that an order under section 17(1) may only be issued if a moving party satisfies the Court that there has been a material change in circumstances. I note that the Applicant is not seeking a review, but a formal variation on her Motion to Change. As such, a material change in circumstances must be found in to order to grant the relief she ultimately seeks.
On this motion, the Applicant seeks a temporary variation of an existing (ie. final) support order pending the hearing of Motion to Change. In S.H., Justice Dambrot speaking for the Divisional Court offered the following helpful comments when dealing with a temporary request to vary an existing parental arrangement set out in a final order:
“Pazaratz J. went on to say at para. 52 of F.K. v. A.K. that the need to exercise caution is heightened where the existing parental arrangement has been determined by a court order, and that the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a final order in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling. The onus is on the party seeking a temporary variation to establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
The imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle, since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made: Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) at p. 414. There is a long line of cases prior to the decision in F.K. v. A.K. that insist on a stringent test. I will mention only a few.
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To all of this, the appellant added, in her factum, that this stringent test (i) ensures that important and difficult decisions relating to a child’s best interests are not, save for exceptional circumstances, made on the basis of incomplete information, (ii) limits the amount of judicial resources that are allocated to cases which have already been resolved by way of a court order, and (iii) ensures that a child’s routine and schedule are not turned upside down on a motion only to be potentially changed again at a final hearing. I adopt these considerations as well as those identified in the cases I have referred to.
The motion judge accepted the statement of the law in F.K. v. A.K., with one caveat. While he agreed that there must be compelling evidence to support changing a final order on an interim basis, he cautioned that the stringent test in F.K. v. A.K. should not be read in a manner that places too much emphasis on maintaining the status quo.
I have already said that the imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle and consistent with authority. Before embarking on an inquiry into the best interests of the child, the court must first be satisfied that circumstances exist of so compelling and exceptional a nature that they require an immediate change. I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.”
I see no compelling reason to avoid using the same approach when dealing with a temporary request to vary existing final support orders. The Applicant has engaged this Court’s jurisdiction to assess the merits of her request to vary the Paisley Order on a permanent basis. That request requires a fulsome, thorough hearing by way of a long motion (in the Toronto Region). If this Court is to implement an “immediate change” to the existing support arrangements in the Paisley Order, the Applicant must demonstrate, at a minimum, the existence of compelling and exceptional circumstances to warrant that temporary variation.”