March 12, 2025 – Temporary Changes to Final Orders

“For some time, cases suggested that there was limited jurisdiction under s. 17 [of the Divorce Act] to make temporary changes to a final order for support:  see for example Andries v. Andries, 1998 CanLII 14093 (MB CA), [1998] M.J. No. 196 (C.A.) and Vipond v. Vipond, [1990] O.J. No. 3292 (S.C.J.).  There have been cases since then which suggest that there is jurisdiction to change support orders on a temporary basis.  In Hayes v. Hayes, 2010 ONSC 3650 for example, Spies J. suggested that a support order could be temporarily varied on the same basis for which a stay could be granted (prima facie case; urgency; hardship) and in Berta v. Berta, 2019 ONSC 505, Kurz J. suggested further refined the test for an interim variation to add a further requirement for the moving party to have clean hands.  Therefore, the cases now state that, for there to be a temporary change in support, the moving party must address four issues:

            1.    Is there a good prima faciecase for a variation of support;
            2.    Would continuation of support result in a hardship to the payor?
            3.    Is the matter sufficiently urgent to vary support on a temporary basis; and
            4.    Does the moving party come to court with clean hands?”

Raaflaub v. Gonosch, 2020 ONSC 1578 (CanLII) at 7

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