“Section 6 of the Family Responsibility & Support Arrears Enforcement Act, 1996, S.O. 1996 c. 31, makes it clear that to stay enforcement by Family Responsibility Office, it is not enough just to obtain an order staying enforcement. The support order itself must also be stayed. Suspending or staying a final order is indistinguishable in effect from an interim variation of that order. For a time, this meant the court was dealing with two different legal tests, one for the stay of enforcement (for example see Yip v. Yip, 1988 CanLII 4472 (ON SC), [1988] O.J. No. 2784 (Ont. H.C.)) and one for an interim variation of a final support order (for example see Dancsecs v. Dancsecs, 1994 CanLII 7434 (ON SC), [1994] O.J. No. 1070 (Gen.Div.)).
The two tests were melded in the often cited and relied on decision by Justice Quinlan of Garneau v. Ontario (Director, Family Responsibility Office), 2010 ONSC 2804, at paragraph 37. The test she set out was that the payor needed to demonstrate “a prima facie case on the merits of the variation application” and come to court with “clean hands”.
Shortly afterward Hayes v. Hayes, 2010 ONSC 3650 reviewed the different heads of relief and applicable tests as well starting at para. 27. Justice Spies also concluded (at paragraph 39) that it would preferable to have one test for both the stay of enforcement and the request to suspend or vary the existing order on a temporary basis. She adopted the test set out in Garneau, adding that the previous caselaw had also indicated that the moving party must establish a case of hardship. As set out in paragraph 40 of that decision, she summarized that relief can be granted if the moving party (1) has established “a prima facie case that there has been a material change”, (2) has established hardship, and (3) and has come to the court with clean hands.
The following year the tests for an interim stay of enforcement and an interim variation of a support order were looked at again by Justice Mitrow in Clark v. Vanderhoeven, 2011 ONSC 2286. He also found that there should only be one test, the first part being that the moving party must demonstrate “a prima facie case on the merits of the variation application”. Drawing from previous cases, in his restatement of the test (at paragraph 67) he found that the “hardship” must be a clear case or there must be a finding that the continuation of the order is incongruous and absurd, which meant inappropriate, unreasonable or ridiculous. He also reemphasized the need for the variation be urgent.
Justice Kurz recently also took a comprehensive look at the law in Berta v. Berta, 2019 ONSC 505. Although that was a Divorce Act case, he found that the same principles and treatment applied in both legislative schemes. In large measure he adopted the Hayes and Clark decisions (at para. 36), although in looking at the history of the test and the need for a “clear case” for relief, he was of the view the moving party’s prima facie case must be a strong one. His version of the test is set out at para. 40, and was adopted recently in Raaflaub v. Gonosch, 2020 ONSC 1578 at para. 7 and Surdyka v. Surdyka, 2020 ONSC 3366 at para. 12. I apply it here:
[40] … the applicable test for an interim variation of a final support order (and by extension a stay of the previous one) requires the moving party to prove:
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- A strong prima faciecase;
- A clear case of hardship;
- Urgency;
- That the moving party has come to court with “clean hands”.
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Regarding the first part of the test, the question is not just whether there has been a material change in circumstances, but whether there is a strong prima facie case on the merits of the variation application as a whole. That means being mindful of the original support order and varying it only to the extent required by the change in circumstances: Haworth v. Haworth, 2018 ONCA 1055 at para. 21.”