Court File and Parties
COURT FILE NO.: FS-11-372290
DATE: 20220315
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LAN PHAM Applicant
– and –
YOUNG HO Respondent
Counsel: Katelyn Bell, lawyer for the Applicant Angela Princewill, lawyer for the Respondent
HEARD: March 10, 2022
Endorsement
Overview
[1] In July 2009, the parties separated after an 11 year marriage. By consent final order dated June 4, 2012 of Justice Paisley, (the “Paisley Order”) the parties resolved all their parenting and child support issues. The Paisley Order mandated the respondent to pay child support in the amount of $1,115.00 per month.
[2] There are two children of the marriage, A (currently 21 years old) and T (currently 17 years old). A is currently in her last year of post-secondary studies at the University of Waterloo. T is in her final year of high school, and planning to attend university in the fall of 2022.
[3] While the terms of the Paisley Order did address certain section 7 expenses, it did not contemplate the parties’ sharing of post-secondary expenses.
[4] It is the Applicant’s position that the Respondent has not paid proper child support, including a failure to contribute his pro rata share to the children’s post-secondary expenses.
[5] The Applicant commenced her Motion to Change in late November 2020. Within this Motion to Change, the Applicant now brings a motion seeking a temporary order, on a without prejudice basis, that the Respondent:
(a) pay increased child support to the Applicant commencing (retroactively) on January 1, 2022;
(b) contribute 58% towards the costs of the children’s post-secondary expenses (in line with the Applicant’s view of the parties’ 2020 incomes); and,
(c) Pay child support arrears for the two children of the marriage from 2013 to the present, in the total amount of $43,744.45.
Interim Motions to Vary a Final Order
[6] 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, 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”.
[7] 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?
[8] 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.
[9] 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.
[10] In Gordon v. Guimont 2016 ONSC 4569 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.
[11] The Applicant also relies upon the decision of Justice Wolder in Bertram v. Murdock 2006 ONCJ 69. 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.
[12] Finally, the Applicant relies upon the decision of Justice Labrosse in Gorska v. Gorski 2015 ONSC 7522, 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.
[13] 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.
[14] In what circumstances should, or more particularly can, the Court grant such temporary relief in the face of a pending Motion to Change?
[15] 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.
[16] 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 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.
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.”
[17] 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.
Decision
[18] In my view, absent the Respondent conceding any positions advanced by the Applicant, no such compelling and exceptional circumstances exist on the record before me given that a formal Motion to Change is pending. While the Respondent does agree with some of the positions advanced by the Applicant (and I will set out the resulting in temporary relief hereinafter), he is disputing most of the Applicant’s positions with respect to outstanding child support arrears and section 7 expenses. He is also disputing the Applicant’s request to implement new, pro rata sharing of post-secondary expenses, a term which was not dealt with in the Paisley Order at all.
[19] For example, in response to the Applicant’s request that the Respondent contribute 58% towards the children’s post-secondary expenses on a go forward basis, the Respondent argues that he should contribute up to 30% of T’s expenses, with the Applicant and Respondent sharing the balance (ie. 35% each). The Court has no real evidence from T and such a request is premature properly left for the judge presiding over the Applicant’s Motion to Change.
[20] The Respondent has also taken issue with some of the section 7 expenses incurred towards A’s post-secondary education to date, including the choice of living arrangements being too expensive. While I make no comment on the merits of the Respondent’s position, he is entitled to take that position and have it assessed at the Motion to Change.
[21] For these reasons, this Court is only prepared to make temporary orders on matters which are clearly not in dispute or have been consented to by the Respondent. The balance of the Applicant’s request for temporary variation orders is dismissed.
[22] To that end, and in accordance with the Respondent’s consent, I make the following order on a temporary and without prejudice basis:
a) The Respondent shall pay ongoing child support to the Applicant in the amount of $1,115.00 per month commencing on April 1, 2022 until such time as A graduates post-secondary and as long as T continues to remain at home.
b) The Respondent shall pay the Applicant arrears for A’s outstanding post-secondary expenses in the amount of $9,974.15.
[23] The balance of the temporary relief sought by the Applicant is dismissed. With respect to ensuring that this Motion to Change is heard by the Court by way of long motion as expeditiously as possible, I note that there are available dates for a long motion in April, May and June 2022. I am ordering that the parties schedule an attendance in To Be Spoken To Court before Justice Shore on the next mutually agreeable Monday so that the Motion to Change can be formally scheduled.
Costs
[24] If either party seeks costs of this motion, I would first urge them to exert the necessary efforts to try and resolve those costs. If those efforts prove unsuccessful, the parties may serve and file written cost submissions with the following schedule:
a) The Respondent shall serve and file his written cost submissions (totaling 5 pages including a Costs Outline) within 10 business days of the release of this Endorsement; and,
b) The Applicant shall serve and file her written responding cost submissions (totaling 5 pages including a Costs Outline) within 10 business days of the receipt of the Respondent’s written cost submissions.
Diamond J.
Released: March 15, 2022
COURT FILE NO.: FS-11-372290
DATE: 20220315
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LAN PHAM Applicant
- and -
YOUNG HO Respondent
ENDORSEMENT
Mr. Justice Diamond
Released: March 15, 2022