September 2, 2021 – The Test to Change A Temporary Order

“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.

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).

“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).”

            Mancini v. Mancini, 2020 ONSC 5259 (CanLII) at 26-28