“The husband seeks to change, and reduce, the temporary spousal support Order of $6,500 monthly made by Bennett J. less than a year ago on January 28, 2022. That Order was based on a $235,000 yearly income attributed to the husband and upon which amount the husband agreed: the husband wants the amount reduced to $2,419 a month based on the $107,000 income critique prepared by his expert slightly more than two months after the Order was made.
Sections 17(1)(a) and (4.1) of the Divorce Act (“the Act”) provide as follows:
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
a support order or any provision of one, on application by either or both former spouses
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
In Grass v. Hropak, 2020 ONSC 7803 (CanLII), at para. 87, the case involved (among other things) a motion to vary and reduce a temporary October 2019 support Order made on consent at a case conference. The parties had agreed to use a three-year average (2016 to 2018) for the income of the husband (the payor). He alleged that his income earned afterwards was, on average, less than that set out in the Order and sought a reduction. The wife resisted the relief for several reasons, two or which are relevant to the motion before this court. She contended that there had not been a material change in the husband’s circumstances and that the reliability of his post-Order income was questionable. In declining to change the spousal support term, Kraft J. noted the court’s approach to variation requests involving temporary Orders.
The courts generally avoid varying interim orders on motions prior to trial unless the circumstances are urgent. Jarvis J., in Pakka v. Nygard 2004 CanLII 5071 (ON SC), stated as follows:
The variation of an interim order is a difficult area. Policy considerations dictate that such applications be discouraged. They increase the stress and uncertainty of the parties and vastly increase the cost of litigation. To echo the words of Wolder J. in Thompson v. Thompson, [1995] O.J. No. 2106 (Ct. J. (Prov. Div)), such that an order should be varied only where the failure vary “would cause the payor to suffer undue hardship or that a continuation of the existing order would be incongruous or absurd.” (Underlining added in the original).
Other cases have used “compelling”, “exceptional” and “rare” to describe the circumstances warranting a variation: see, for example, Thom v. Thom, [2014] O.J. No. 2115, 2014 CarswellOnt 5708; Lusted v. Bogobowicz, 2021 ONSC 269 (CanLII) at paras 24-26. In Mancini v. Mancini, 2020 ONSC 5259 (CanLII), 2020 ONSC 5259 (CanLII) at paras 26-28. the payor sought to vary a temporary Order that had imputed to him, with his consent, a $100,000 income: he claimed that when the Order was made he had not been able to provide adequate financial disclosure and that he was now able to provide disclosure suggesting that his actual income was $40,800 a year. Unlike the self-employed husband in the case before this court, the new evidence about Mr. Mancini’s income was viewed suspiciously because the business in which he was engaged was closely connected to a company operated by family members. His mother had provided an affidavit containing his accounting and income tax information. Smith J. considered the test for variation of temporary spousal support Orders under the Act:
[26] The test for variation of temporary orders was summarized by Justice Chappel in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, (2012) ONSC 6689:
18 The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 of the Divorce Act sets out a framework for the variation of support and custody orders, however that section only applies to variation of final spousal support orders made pursuant to section 15.2(1) of the Act.
19 Despite the lack of specific provisions in the Divorce Act regarding variation of temporary orders, the court does have the authority to make changes to temporary spousal support orders in response to developments in the parties’ situations and the availability of more fulsome evidence relevant to the spousal support analysis. The power to vary temporary spousal support orders made under the Act derives from the court’s inherent jurisdiction to amend interlocutory orders. This ability to vary such orders is critical to ensuring fairness and justice as between the parties, given that temporary orders are often imperfect solutions based on very limited and usually untested information. As Sachs, J. stated in Chaitas v. Christopoulos, temporary corollary relief orders are intended to provide “a reasonably acceptable solution to a difficult problem until trial.”
20 The test that applies 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 spousal support order rather than waiting until trial is a heavy one.
[27] There is a heavy onus on the party seeking to vary a temporary support order, in that the change of circumstances must be substantial since the previous order was made. A substantial change must also be material, meaning that “had it existed at the time…would likely have resulted in a different order (see Colivas v. Colivas, 2016 ONSC 715).
[28] “A party cannot rely on his own failure to provide adequate disclosure to argue that the decision based on inadequate disclosure should be given less deference.” (see Colivas v. Colivas, at par. 29).”