ENDORSEMENT

The Motion:

[1] On May 29, 2024, I heard the Respondent’s motion to terminate the “interim without prejudice” spousal support order made by Chozik J. on December 22, 2022. This Motion was brought by notice of motion dated January 18, 2024. I reserved my decision, and this endorsement is my decision.

Setting of a Case Conference:

[2] Although this proceeding started in 2022 there has only been an Early Case Conference held in this matter on October 22, 2022. An Early Case Conference is a conference limited to 15 minutes to discuss one or two issues. The matter has not otherwise progressed toward a final resolution. Therefore, on May 29, 2024, I set a Settlement Conference date for September 17, 2024 at 10:00 a.m. It will occur in person. Prior to the Settlement Conference, the parties shall serve and file Settlement Conference briefs and updated Financial Statements in accordance with the Family Law Rules.

Basic Facts:

[3] The parties were married October 5, 1984 and separated June 8, 2022. They have 4 children who are all adults.

[4] The Applicant is 67 years of age, and the Respondent is 62 years of age.

[5] By order dated December 22, 2022, Chozik J. ordered that the Respondent pay to the Applicant interim without prejudice spousal support in the amount of $2,144 per month commencing January 1, 2023.

[6] According to the Applicant’s Financial Statement sworn December 13, 2022, her gross yearly income from all sources was $28,948.44.

[7] According to the Respondent’s Financial Statement sworn December 9, 2022, his gross yearly income from all sources was $80,228.04.

Law:

[8] The legal principles applicable to the variation of a temporary support order are as set out at paragraphs 22-32 of Gilkinson v. Nicols, 2023 ONSC 1504:

[22] The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 only applies to variation of final support orders made under section 15.1(1) of the Act. The Family Law Rules allow the variation of temporary orders in limited circumstances—rule 25(19) only applies when the order was obtained by fraud, contains a mistake, or there was lack of notice.

[23] That said, this court has the authority to change temporary support orders under the court’s inherent jurisdiction to amend interlocutory orders. This ability to vary such orders is “critical to ensuring fairness and justice” between the parties, given that temporary orders are often “imperfect solutions” based on minimal and usually untested information. See, e.g., Sun v Lo, 2023 ONSC 128, at para 18, and Damaschin-Zamfirescu v Damaschin-Zamfirescu, 2012 ONSC 6689, at para 19.

[24] The test for a motion to vary a temporary support order has evolved. In Lipson v Lipson, 1972 CanLII 470 (Ont CA), the Court of Appeal held that there must be a “substantial change in the circumstances.” In Willick v Willick, 1994 CanLII 28 (SCC), [1994] 3 SCR 670 at 688, the Supreme Court of Canada held that variation of an existing order requires the moving party to show that there has been a “material change of circumstances”—a change “that, if known at the time, would likely have resulted in different terms.” See also LMP v LS, 2011 SCC 64, at para 32. In Iafolla v Lasota, 2021 ONCA 245, at para 28, the Court of Appeal held that the test for a “material change” is a change that is substantial and continuing and, citing LMP, would have resulted in different terms. When our courts have cited Lipson or used the word “substantial” to describe the threshold question, I take that to mean a “material” change in that it is substantial (see, e.g., Albaum v Albaum, 2022 ONSC 1300).

[25] In addition, our courts have required the moving party to justify a temporary order. In Pakka v Nygard, 2004 CanLII 5071 (Ont Sup Ct), Justice Jarvis required the moving party to show that “the payor [would] suffer undue hardship or that a continuation of the existing order would be incongruous and absurd.” See also Rowland v Middlebrook, 2013 ONSC 2838, at para 27; Ceho v Ceho, 2015 ONSC 5285, at paras 93-94; and Grass v Hropak, 2020 ONSC 7803, at para 87.

[26] In Nour v Youssef, 2021 ONSC 2717, Justice Kurz held that the test for variation of a final order and a temporary order are the same: (a) a strong prima facie case that there has been a material change in circumstances since the order; (b) a clear case of hardship; (c) urgency; and (d) that the moving party has come to court with “clean hands” (at paras 33-34). See also Edisbury v Edisbury, 2022 ONSC 2407, at para 33.

[27] In all these cases, our courts have identified several policy reasons for a stringent application of the “material change” test on a temporary motion:

motions for temporary orders should not be encouraged (Lipson)
interlocutory motions “increase the stress and uncertainty of the parties and vastly increase the cost of litigation” (Pakka, at para 5)
temporary orders are an attempt by the court to be “consistent and fair on the basis of evidence that is often incomplete, and never viva voce” (Pakka, at para 5)
the trial judge is in a better position to analyze the resources and needs of the parents and the children, including the children’s standard of living (Rowland, at para 30)
parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible (Damaschin-Zamfirescu, at para 20)

[28] That said, the court’s power to vary a temporary support order is “critical to ensuring fairness and justice as between the parties”—it would be unfair to continue a temporary support order as new and better evidence emerges, especially where a trial date is some time in the future. See Damaschin-Zamfirescu, at paras 19-20.

[29] This case presents an added complication—the support order was made, on consent, “without prejudice”. The order is silent about, exactly, what was “without prejudice”. In Ceho, Justice Price, at para 97, described the purpose of “without prejudice” orders:

Such orders are intended to remain in effect only until a full hearing of the motion for a temporary order, when they will be changed by the written agreement or court order that ultimately disposes of the motion. Such a “without prejudice order” is made in contemplation of a further order, based on a more complete evidentiary record.

[30] In Damaschin-Zamfirescu, Justice Chappel held that when a party seeks to vary a temporary without prejudice order, the court should “reconsider the issue of…support as a hearing de novo on the more complete record before the court” without requiring the moving party to prove a “substantial change in circumstances” (at para 23). In that case, the parties were moving to vary a “temporary without prejudice” order less than two years after it had been made, which distinguishes it from this case.

[31] Here, the parties consented to a temporary, without prejudice order almost 10 years ago. The court ordered them to proceed to a mini-trial on child support. There is no suggestion that they intended to litigate child support at a further interlocutory motion. Their conduct strongly suggests that the without prejudice order was intended to order the parties’ affairs until a trial, which has since been delayed by both sides. My view is reinforced by the fact that the order was made when the children were all adolescents—the parties likely contemplated that a final order would be made long before the children reached the age of majority.

[32] For these reasons, and in the context of this case, I have applied the following legal test:

(a) has Gilkinson proven a strong prima facie case for a material change in circumstances since the prior order (i.e., a change that is substantial, continuing and that “if known at the time, would likely have resulted in different terms”); and

(b) will Gilkinson suffer undue hardship if the variation is denied; or

(c) would the continuation of the existing order would be incongruous and absurd (which includes a consideration of urgency)?

Analysis:

[9] I apply the test set out at paragraph 32 of Gilkinson.

[10] In my view, the Respondent has established a strong prima facie case for a material change in circumstances since the December 22, 2022 order.

[11] In December of 2022 the Respondent was earning $4,744 per month driving Uber. The uncontradicted evidence is that he is no longer doing so. His affidavit indicates that driving for long hours was challenging on him physically and he had to stop.

[12] The Respondent then secured a second restaurant job. When he filed his Affidavit sworn January 18, 2024 in support of this motion, he estimated his total gross yearly income to be $42,688.32, including tips.

[13] In his Affidavit sworn May 16, 2024, the Respondent indicates that he was terminated from one of his two restaurant jobs. He is now only working at one restaurant where his monthly income is $2,309.52 or $27,714.24 per year, according to his Financial Statement sworn May 17, 2024.

[14] There has been a significant decrease in his income.

[15] There has also been an increase in the Applicant’s income. According to her May 27, 2024 Financial Statement, her gross income from all sources is now $31,932.00, which is higher than the Respondent’s income.

[16] Neither party has any significant assets, and both have debts.

[17] I also find that continuing the interim without prejudice order would cause financial hardship. The parties are in similar financial circumstances. The spousal support order is almost all of the Respondent’s current income.

[18] To continue the order at this time would be incongruous and absurd. The Applicant’s income is higher than the Respondent’s. The Respondent cannot reasonably afford to pay the spousal support as ordered.

Conclusion:

[19] I grant a temporary order that the December 22, 2022 spousal support order is varied such that the Respondent’s obligation to pay to the Applicant temporary spousal support is terminated as of February 1, 2024 (his motion was commenced in January of 2024). The enforcement of arrears is stayed. SDO to issue.

[20] To be clear, this does not mean that I have made any finding with respect to the Applicant’s entitlement to spousal support. This decision is based purely on the Respondent’s inability to pay.

[21] Further, this is a temporary order only. This is without prejudice to what may happen at trial on a full record.

[22] Costs of this motion are reserved to the trial judge.

Coats J.

Released: May 31, 2024

Michael v. Michael, 2024 ONSC 3107

Case Summary

ENDORSEMENT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 1