Superior Court of Justice – Ontario

Court File No.: FS-23-00036107-0000
Date: 2025-03-28

Between:
Panagiotis Korogonas, Applicant
and
Samantha Iorio, Respondent

Before: Laverne A. Mathen
Applicant Counsel: Meysa Maleki
Respondent Counsel: Melanie Battaglia
Heard: 2025-03-20

Endorsement

Motion

[1] The Applicant father, Panagiotis Korogonas (“Pete”), brings a motion for:

a. an order varying a without prejudice temporary child support order of Justice Shore (“Shore Order”), as follows:

i. Commencing April 1, 2025, on a temporary without prejudice basis, the Respondent, Samantha Iorio (“Samantha”), shall pay monthly child support in the amount of $2,769; or

ii. Commencing April 1, 2025, on a temporary without prejudice basis neither party shall pay child support.

b. an order that commencing April 1, 2025, the parties shall apportion agreed upon section 7 expenses 30.69% - 69.31% with Samantha paying the higher share; but leaving in place paragraph 8 of the Shore Order; and

c. costs.

Issues and Brief Conclusion

[2] The issues on this motion are:

a. What is the test for deciding whether to vary the Shore Order?

b. Applying that test, should the order be varied?

c. Does either party owe costs?

[3] I have determined that the appropriate test is the one articulated in Gilkinson v. Nichols, 2023 ONSC 1504 at para. 32. Applying that test, and reviewing the material presented, I am not persuaded that the order should be further varied on an interim basis. Samantha is owed some of her costs for this motion.

Background

Party History

[4] The parties, who married in 2011, separated in May 2021. While married, they lived in Calgary. They have a daughter born in 2015 and a son born in 2017.

[5] During the marriage, both parties worked at Ernst and Young. Pete left the company in 2020. In September 2021, he secured full-time employment with a company called RSM.

[6] In November 2020, Samantha accepted a job as an income partner at Deloitte in Toronto. The impending move created, or coincided with, difficulties in the marriage. After separating, the parties underwent initial law proceedings in Alberta. On August 27, 2021, an arbitrator granted Samantha’s request to relocate with the children to Toronto.

[7] The parties engaged, unsuccessfully, in mediation. An arbitral award was issued on September 15, 2022. Presuming that Pete would be living in Calgary, the arbitrator granted him 10 parenting days per month.

[8] Jurisdiction over the case was transferred to Ontario.

[9] A few months after the second arbitral award, Pete decided to relocate to Ontario. Upon his arrival in early 2023, Pete asked for equal parenting. Eventually he brought an application to TBST Court. On September 11, 2023, Justice Diamond directed the parties to an urgent case conference. His Honour stated that “if the issues raised in the applicant’s motion materials are not resolved in full or in part”, Pete could proceed with a motion in October.

[10] Justice Shore conferenced with the parties on September 26, 2023. After canvassing both parenting and support issues, the parties entered into a “temporary, without prejudice” consent order under which:

a. Pete has parenting six out of fourteen nights;

b. Pete pays monthly table child support of $2,317;

c. Pete pays his proportionate share of their daughter’s ongoing dance classes;

d. Samantha is noted as having paid for the children’s activities – art theater school, gymnastics and skating for the daughter, and soccer, hockey, and skating for the son; and

e. The child support order is described as “specifically without prejudice to [Pete’s] arguments with respect to the application of Section 9 of the Child Support Guidelines and without prejudice to [Samantha’s] claims for retroactive child support (monthly Table support and section 7 expenses) to separation.”

[11] There was a settlement conference in January 2024. Parenting and child support were discussed again. Both parties agreed to exchange financial information. Leave for questioning was granted. A combined settlement/trial management conference was set for October 18, 2024.

[12] The combined conference proceeded as a settlement conference because, the conference judge stated, the matter was not ready for trial. Additional time was given to respond to requests for information. Questioning was scheduled. The conference judge also set the date for this short motion.

[13] In June 2024, Samantha was promoted to Equity Partner at Deloitte. She estimates that her line 150 income for 2024, grossed up, is $213,300.

[14] Pete’s current income is $188,002.

[15] On the day of this motion, the Respondent’s lawyer submitted an affidavit from a law clerk stating that the Applicant had misrepresented information to the Court. The Applicant objected to the affidavit in the strongest terms, and uploaded a reply affidavit. These affidavits are unnecessary to my decision, and I have not considered them.

Party Positions

Pete

[16] Pete argues that, because Justice Shore’s order was “urgent, without prejudice and ‘temporary, temporary’”, it was “specifically intended to be varied before trial.” He says the issue of child support should be considered de novo.

[17] On that de novo analysis, child support must be adjusted because, among other things, Pete has parenting for at least 40% of the time. Arguing that Samantha’s income is now over $400,000, Pete says that he is owed a set off of $2,769. He is suffering financially from the child support payments, which affect the children’s standard of living while in his care. He says the children have a more comfortable home with their mother; and Samantha “will leverage this to further a wedge between him and [them]”.

[18] Pete asks this court to draw an adverse inference from Samantha’s alleged lack of disclosure and misleading statements.

[19] Alternatively, Pete says there has been a material change in circumstances. Pete says that, had he known that Samantha would insist that the temporary order remain in place until trial, he would not have agreed to it. In addition:

a. he did not have adequate disclosure from Samantha at the first conference;

b. her income has since increased significantly; and

c. she refuses to share the children’s equipment, forcing him to buy duplicates and unjustifiably increasing his section 7 expenses.

[20] Pete denies he owes retroactive child support, in part, because of $44,402 in travel expenses he incurred when the children first moved to Ontario. Pete argues that Samantha has not brought a motion for retroactive child support because she knows that claim is weak.

[21] Should the court not accept that Samantha must pay temporary child support to Pete, Pete asks for an order that neither party pay child support.

Samantha

[22] Samantha says Pete has the burden to show why the temporary order should be varied. Pete has not established an urgent or other justifiable reason to vary it. The order was “an interim solution to a difficult matter, as interim Orders are meant to be.”

[23] Prior to the initial order, the parties were in litigation for two and a half years. They exchanged financial statements. During that time, when Samantha had primary parenting, Pete did not pay any child support.

[24] At the September 2023 case conference, Pete had the benefit of legal advice. He agreed to pay full Table child support because, at trial, he would likely have to pay retroactive child support of between $90,000 and $113,000.

[25] Samantha says that Pete has pursued shared parenting with the sole object of receiving child support from her.

[26] In the alternative, Samantha says, a proper application of section 9 of the Child Support Guidelines would not lead to a different interim order.

[27] Samantha says that Pete is mispresenting her current income. Due to her new role as an equity partner, she has undertaken additional financial burdens. Because a partnership is not a taxable entity, equity partners pay tax on attributed income before they actually receive it. It therefore shows up on financial statements without a corresponding increase in actual funds. Samantha receives a gross biweekly draw of $5,000. In 2025, she will be “applicated approximately $146,646 in partnership income” for 2024. Therefore, Pete’s claim that she currently makes over $400,000 is inaccurate.

[28] Samantha denies that the children’s standard of living differs markedly between the parties. She says that Pete lives in a luxury condominium. She says that Pete “often refuses to pay for the children’s section 7 expenses, including after providing consent for same.”

[29] Samantha says the matter is “trial ready”. Questioning has been completed. There is a trial management conference on May 6, 2025, with a likely trial date for the fall.

[30] Both parties argue that the other has not come to this court with “clean hands”.

Analysis

Issue One: What is the test for deciding whether to vary the Shore Order?

The Law

[31] Superior courts have inherent jurisdiction to vary interlocutory orders: Stannard v. Stannard, 1991 CarswellAlta 334 (Q.B.) at para. 9.

[32] In Gilkinson v. Nichols, 2023 ONSC 1504 at para. 32, Justice Agarwal applies the following test for variation:

a. Has the moving party 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 the moving party suffer undue hardship if the variation is denied; or

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

[33] Agarwal J. notes that the order in question was almost 10 years old and “there was no suggestion that [the parties] intended to relitigate child support at a further interlocutory motion”: para. 31.

[34] Other cases have distinguished temporary orders from so-called ‘temporary temporary’ orders.

[35] In Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, the court considered whether to vary an order for spousal support. Justice Chappel says at para. 22:

Neither the Divorce Act nor the Family Law Rules refer to temporary temporary without prejudice orders. However, as a matter of practice, such orders are often made at the early stage of Family Law proceedings to address very pressing issues and to provide some measure of order and stability to the parties’ immediate affairs. These orders are typically made at a time of high stress, and before the parties or their counsel have had a full opportunity to assess the parties’ respective financial situations or to formulate a clear plan for the parties to move forward with their separate lives. The evidentiary record upon which the court makes such orders is therefore typically incomplete…

[36] Noting that temporary temporary orders are intended to create “an interim solution for an even shorter period of time than from the date of the order until trial”, Justice Chappel says that a material change standard is not appropriate. Instead, “where a party seeks to vary a temporary temporary without prejudice spousal support order, … the court should reconsider the issue of spousal support as a hearing de novo on the more complete record before the court”: para 23.

[37] In Kirichenko v. Kirichenko, 2021 ONSC 2833, Justice Charney observes “some dispute in the case law as to whether the material change in circumstances test applies with equal force to a temporary [order].” He concludes that a temporary order is a possible exception to the material change standard, reasoning at para. 27 that:

[a] “temporary, without prejudice” agreement would be difficult to achieve if one or the other party thought that they were creating a new status quo requiring a material change in circumstances before it could be varied.

[38] In Ceho v. Ceho, 2015 ONSC 5285 at para. 69, Justice Price also rejects the “material change” standard:

[W]here a temporary without prejudice order is made pending the parties’ cross-examination of each other on their respective affidavits, or pending a clinical assessment by the Office of the Children’s Lawyer, the only change of circumstances that a party must show in order to have the order varied is that the cross-examinations or clinical assessment have been completed. This is especially so in the present case, where the Children’s Lawyer, based on its assessment, recommends a change in the custody and access regimen that was put in place pending the completion of the OCL’s assessment.

[39] Justice Price adds that the expression “without prejudice, which “is intended to preserve the position of each party…would be rendered meaningless” if it “prejudiced the party who consented to it, by imposing on [them] a higher threshold of proof in the future.”: Ceho at para. 86.

[40] In Musheyev v. Gilkarov, 2016 ONSC 4120 at para. 17, Justice Charney considers Justice Chappel’s analysis in Damaschin:

While Chappel J. was referring to spousal support, the same observations can be made about any “without prejudice” temporary consent order in family law. The intention of the parties is often to break a litigation logjam and achieve “some measure of order and stability” in the short term. These agreements give parties a chance to disengage without formally giving up their position in the litigation. Such agreements may last only a short time, although they sometimes remain in place for extended periods through inertia or litigation fatigue. There is little doubt, however, that “temporary, without prejudice” agreements would be far more difficult to achieve if one or the other party thought that they were creating a new status quo requiring a material change in circumstances before it could be varied.

[41] In Rigillo v. Rigillo, 2019 ONCA 548, the Ontario Court of Appeal found that the trial judge wrongly relied on a status quo created by a without prejudice consent parenting order. The judge should have conducted a fresh analysis either applying the correct legal principle (in that case, a “maximum contact rule”) or explaining why the principle should not govern.

Findings

[42] Pete says that this motion should be considered de novo. In oral submissions it was suggested that this Court is bound by language from the Divisional Court that any “without prejudice” order is, essentially, temporary temporary.

[43] I am not persuaded that the cases cited on this motion go that far. However, I acknowledge that several cases reject applying the material change standard to temporary orders.

[44] At the same time, there are important distinctions in the Applicant’s cited cases, where the court undertook a de novo analysis, and this one:

a. In Damaschin, Justice Price speaks of temporary orders issued at an “early stage”. That is not the situation here. At the time of the Shore order, the parties had been in litigation for over two years in Alberta. The parties had exchanged substantial information, including financial statements five days before the case conference in question.

b. In Ceho, the initial temporary order was made “pending the parties’ cross-examination of each other on their respective affidavits, or pending a clinical assessment by the Office of the Children’s Lawyer”. No similar circumstances exist here. Questioning was permitted in January 2024, but not ordered until the combined conference in October. The Office of the Children’s Lawyer is not involved.

c. The Court of Appeal decision in Rigillo relates to a final order made at trial.

[45] After he moved to Ontario, Pete attempted to bring an urgent motion in advance of a case conference. When he went to TBST Court, he was not permitted to bring that motion immediately but instead directed to an “urgent” case conference.

[46] Pete emphasizes the fact that the conference was labelled “urgent”. I do not place much weight on that fact. The evidence suggests that the appearance before Justice Shore was a full case conference. Although the impetus was Pete’s request for parenting, both support and parenting were discussed. Additionally, the parties moved directly to a settlement conference in January 2024, rather than a second case conference.

[47] Pete argues that Gilkinson should not be followed because in that case so many years had elapsed between the initial motion and the request to vary that the order could no longer be considered temporary in any sense. While Justice Agarwal did consider the length of time, it was not the sole factor in adopting the framework that he did. In any event, the current order has been in place for 18 months. While shorter than the order in Gilkinson, an 18-month order is not easily described as ‘temporary temporary’.

[48] In considering whether to vary an interim consent order, the court must balance a number of factors. Such agreements can achieve necessary ‘rough justice’ in the pre-trial period. The court must not draw an adverse inference from the mere fact that a party has consented to certain terms on an interim basis. It is unfair to continue a temporary order as new and better evidence emerges. At the same time, permitting parties to easily revisit interim agreements would frustrate the efficient use of court resources, and encourage parties to avoid a final resolution.

[49] In this case, Pete’s request should not be considered on a de novo basis because I am not persuaded that the Shore Order was intended to be ‘temporary temporary’. The Gilkinson framework more appropriately balances the factors noted above. It does not require Pete to actually demonstrate a material change in circumstances, but rather that a prima facie case for one exists. In addition, the framework provides an alternative basis for variation, namely, that continuing the current order would be “incongruous and absurd”.

Issue Two: Applying the Gilkinson standard, should the order be varied?

i. Is there prima facie evidence of a material change?

[50] While Pete need only show a prima facie case here, he makes the following arguments in support of an actual material change:

a. He did not anticipate that Samantha would refuse to vary child support before trial. Had he been aware of this, he would never have consented to a temporary order.

b. Samantha’s income has increased by more than $110,000.00, while his own has increased by less than $10,000.

[51] I am not persuaded that Pete has made out a prima facie case that, at the time of the Shore Order, he thought that Samantha would agree to relitigate child support before trial. Throughout these proceedings Samantha has stated that Pete owes her significant retroactive child support. I decline to put any significance on the fact that Samantha has not brought her own interim motion for retroactive support. Samantha is entitled to wait for trial to press her claims.

[52] Pete initially sought to bring an urgent motion for parenting time. While he was directed to an urgent case conference, the TBST judge specifically allowed Pete to bring that motion if the parenting issue was not resolved. Pete now says that he agreed to pay Table child support at the case conference so that he could avoid a motion for parenting time. I find this account implausible.

[53] With respect to the purported increase in Samantha’s income, while her position clearly has changed, Pete has not made out a prima facie case that Samantha’s income has increased by $110,000. Samantha deposes that, as an equity partner, she is allocated income for tax purposes because a partnership is not a taxable entity. However, that allocation does not coincide with an actual distribution of funds. Samantha deposes that she has had to take out a line of credit at the suggestion of her employer, because of the initial adjustment to equity-based earnings. It appears that Pete wants the court to accept that Samantha has more money regardless of whether she has actually received it. Pete cites no caselaw for this proposition. Samantha cites cases that recognize that, where a party receives a base income plus variable bonuses, it is appropriate to count those bonuses as income only upon actual receipt in hand: Easton v. Coxhead, 2018 ONSC 4784. I am more persuaded by Samantha’s account of her current income.

[54] As this part of the Gilkinson test mentions hardship, I note that Pete says that his monthly expenses are $11,750 of which $7,857 is spent on the children. The latter amount includes child support. Pete claims that his net pay is $8,663.38 leaves him with a monthly deficit of just over $3,000.

[55] Samantha also describes hardship. She says that in 2024 she did not receive any partnership distributions, only biweekly partner draws aggregating to $75,000. She says she has an adverse cashflow. While she recently purchased a home in central Toronto for $1,550,000, she describes it as modest with an unfinished basement and one full bathroom.

[56] Samantha accuses Pete of running up $200,000 in legal fees while crying poverty. She says this is one of a series of poor decisions by him.

[57] Samantha says, further, that from the time of the Shore Order to present, Pete has paid $39,398 in child support while she has spent approximately $45,000 in legal fees trying to collect child support.

[58] Divorce is expensive. I find it likely that both parties are experiencing hardship. Given the material before me, I am not persuaded that the current arrangement imposes a particular hardship on Pete. A trial judge will be in a better position to decide this issue, should it remain relevant.

[59] I add that, based on the materials, I decline to find that either Samantha or Pete has come to the court with unclean hands.

ii. Is the current arrangement incongruous or absurd?

[60] Even if there has not been a material change, Gilkinson holds that a variation is in order if a prior temporary order leads to current incongruity or absurdity. Pete did not specifically address this factor since he urges the court not to apply Gilkinson. But the thrust of his submissions is that the current arrangement is absurd because he is paying child support to someone with whom he has shared parenting, and who makes so much more than him.

[61] The court cannot draw an adverse inference against Pete for simply agreeing to a without prejudice order: Musheyev at para 19. At the same time, I find it difficult to address this part of the test without averting to that prior order. This is because the order itself is unusual. Pete agreed to pay child support knowing that Samantha’s income was more than his, and despite the fact that he would have parenting for more than 40% of the time. Samantha argues that Pete agreed to this because he knows there is a live question of retroactive child support. Pete says he did so to avoid a “litigation logjam”.

[62] I find Samantha’s account more plausible than Pete’s. Pete was contemplating bringing a motion for parenting in the fall of 2023 but agreed instead to a consent order. The parties appeared before a highly experienced family judge. While I do not draw an adverse inference about the order, I am not persuaded that the order was incongruous or absurd at that time. Given that I have not accepted Pete’s submissions about a current, gross income disparity, there is nothing in the record to suggest that the order has since become incongruous or absurd.

[63] There is a Trial Management Conference set for May. Questioning has been completed. The trial is likely to be scheduled for fall. Over $230,000 is currently being held in trust for the parties from the sale of the matrimonial home, which can be applied to any post-separation adjustments.

[64] In all the circumstances, I am not persuaded that it is appropriate to vary the Shore Order at this time.

[65] Given my conclusion, it is not necessary to address section 7 expenses.

[66] My conclusion is subject to one caveat. If the parties are not close to trial by the fall of 2025, Samantha may receive the much higher level of income Pete says she has now. That would give more weight to Pete’s arguments.

Issue Three: Does either party owe costs?

[67] While Samantha prevailed on this motion, I do not fault Pete for bringing it. The Shore Order is unusual, and the trial process has taken somewhat longer than expected. This was a short motion but some of the arguments were complex. Having reviewed Samantha’s cost outline, I have determined that Pete shall pay Samantha costs of $10,000.

Order

[68] In conclusion, I make the following order:

a. The Applicant’s motion is dismissed without prejudice.

b. The Applicant, Panagiotis Korogonas, shall pay costs to the Respondent, Samantha Iorio, in the amount of $10,000 inclusive of HST and disbursements.

Laverne A. Mathen
Date: 2025-03-28