Mitchell v. Mitchell, 2026 ONSC 4291

CITATION: Mitchell v. Mitchell, 2026 ONSC 4291

LINDSAY COURT FILE NO.: FC-26-00000024-0000

DATE: 20260722

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

ANNE MILLSON MITCHELL

Applicant

– and –

DUFF MITCHELL

Respondent

Cheryl Suann Williams, for the Applicant

Gillian Tadman, for the Respondent

HEARD: June 30, 2026

REASONS FOR DECISION

CHARNEY J.:

1The Respondent brings this motion for the following relief:

2. A temporary order staying the support provisions contained in the Final Order of Justice Graham dated December 22, 2016 (“the Final Order”) and the Support Deduction Order arising from that Final Order;

3. A temporary order staying the enforcement of the support provisions of the Final Order by the Family Responsibility Office;

4. A temporary order staying the enforcement and collection of the alleged support arrears being enforced by the Family Responsibility Office pursuant to the Final Order;

5. In the alternative to paragraphs 2 and 3 above, a temporary and without prejudice variation of the December 22, 2016 final support order of Justice Graham (“the Final Order”) as follows:

i. Paragraph 28 of the Final Order shall be varied on a temporary and without prejudice basis such that, retroactive to September 1, 2024 and continuing thereafter, no table child support shall be payable for the months of September through April in each year as a result of Ruby’s attendance at post-secondary education outside Canada. During the months of May through August in each year, child support shall be payable on a set-off basis, reflecting Ruby’s residence with both parties during the summer months; and

ii. Paragraphs 37 and 39 of the Final Order shall be varied on a temporary and without prejudice basis such that, effective January 1, 2025, the Respondent shall pay spousal support to the Applicant in the amount of $900 per month, being the amount previously agreed to and accepted by the parties from July 2022 through December 2024. Commencing April 1, 2026, and on each April 1 thereafter, the amount payable shall be reduced by 30% from the amount payable on the immediately preceding March 1, consistent with the reduction framework contemplated by paragraph 39 of the Final Order.

2On April 8, 2026, Gunsolus J. granted leave to have this motion for a full or partial temporary stay of enforcement heard pending the motion to change. The motion to change (which was commenced on February 12, 2026) has not yet been scheduled. This motion is not intended to finally determine the motion to change, it is, in effect, a stop-gap pending the determination of that motion.

3While the Applicant opposed much of the relief requested, counsel for the Applicant advised the Court that the Applicant did not oppose certain relief related to the enforcement of arrears and payment of child support.

4Accordingly, on June 30, 2026 I issued a temporary, without prejudice order that included the following terms:

1. Effective immediately, paragraph 28 of the Final Order of Justice Graham dated December 22, 2016, shall be varied on a without prejudice basis such that, retroactive to September 1, 2024, and continuing thereafter, no table child support shall be payable for the months of September through April in each year as a result of the attendance of Ruby Millson Mitchell, born December 23, 2006, at a post-secondary educational institution outside of Canada. Child support shall be payable during the months of May to August by the Respondent to the Applicant.

2. For the purposes of paragraph 1 above and on a without prejudice basis, subject to adjustment, the Respondent shall pay monthly Table child support of $1,764 on each of May 1st, June 1st, July 1st and August 1st, based on his 2025 income of $207,494. For the months of September through April inclusive, Table child support shall be fixed at $0 per month.

3. Pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, effective immediately, the enforcement and collection of support arrears by the Family Responsibility Office pursuant to the Final Order of Justice Graham dated December 22, 2016, shall be stayed pending further order of the court or agreement of the parties.

4. For greater certainty, the support provisions contained in the Final Order of Justice Graham dated December 22, 2016, and the Support Deduction Order arising from that Final Order shall be stayed, effective immediately, to the extent necessary to operationalize the above.

5This temporary order was made without prejudice to the position of either party with respect to the balance of the relief sought. I advised the parties that I would address the balance of the issues in my final decision which I intended to release before September 2026.

6This is the final decision and reasons.

Facts

7The Applicant, Anne Millson Mitchell (the “Applicant”) and the Respondent, Duff Mitchell (the “Respondent”) were married on June 13, 1998, and separated on March 8, 2013.

8There is one child of the marriage, born December 23, 2006. She is now 19 years old and has completed her second year at university in Connecticut, funded in part by a scholarship.

9The parties’ incomes have changed over the course of years, as follows:

Year

The Applicant’s Annual Income

The Respondent’s Annual Income

2018

$145,229

$249,309

2019

$144,592

$170,105

2020

Unknown

$189,651

2021

$230,862

$216,020

2022

$70,143

$224,201

2023

$85,244

$211,056

2024

$101,020

$208,995

2025

$103,091

$210,000

10The parties were involved in a lengthy trial in 2016, which resulted in the Reasons for Decision of Justice Graham dated December 12, 2016. The Final Order provided for the following:

a. The Respondent was to pay the Applicant ongoing child support in the amount of $2,156 monthly based on his 2016 income of $270,652;

b. The Respondent was to pay the Applicant ongoing spousal support commencing January 1, 2016, in the amount of $1,900 monthly;

c. On each April 1, commencing in 2026, the amount of spousal support was to be reduced by 30 percent from the amount paid the immediately previous March 1st;

d. Spousal support was to terminate March 31, 2029; and

e. The Respondent was to pay 64 percent of Ruby’s special or extraordinary expenses.

11The Respondent takes the position that the parties agreed to adjust spousal support and child support in 2020 and 2022 as follows: In 2020, the parties agreed to reduce the amount of Table child support payable by the Respondent to the Applicant to $1,589 monthly and to reduce spousal support to nil. In 2022, the parties agreed to adjust the amount of spousal support payable by the Respondent to the Applicant to $900 monthly on a tax-free basis.

12The Applicant denies that she ever agreed to these reductions or variations from the Final Order.

13As their daughter commenced post-secondary studies in August 2024, the Respondent requested a review of the Table child support payable by him to the Applicant. Near the end of 2024, the Respondent also requested income information from the Applicant to adjust spousal support.

14FRO is enforcing arrears of approximately $47,774.52 as well as ongoing Table child support and spousal support in accordance with the Final Order, rather than the 2020 or 2022 “adjustments” that the Respondent claims the Applicant agreed to. The Respondent disputes these arrears, and this motion is brought to stop FRO from enforcing these arrears and child support and to reduce spousal support pending the motion to change.

Analysis

15Section 17 of the Divorce Act, RSC 1985, c 3 (2nd Supp), authorizes the Court to “make an order varying, rescinding or suspending, retroactively or prospectively” a support order. Section 17(4) and (4.1) provide:

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

16The threshold issue on any motion to vary support is whether a material change in circumstances has occurred since the making of the original support order. Once that threshold has been met, the Court must determine the appropriate support obligation having regard to the parties’ current circumstances, the objectives of the Divorce Act, the applicable Child Support Guidelines and, where appropriate, the Spousal Support Advisory Guidelines.

17Where, as in this case, a Motion to Change remains outstanding, the Court has the jurisdiction to grant temporary and without prejudice relief pending the final determination of the variation proceeding. Depending upon the circumstances, that relief may include a temporary variation of support, a stay of enforcement proceedings, or both.

18The law with regard to temporary variations or temporary stays pending the motion to change was set out by Kraft J. in Hardacre v. Family Responsibility Office, 2026 ONSC 823, at paras. 24 – 25:

In Clark v. Vanderhoeven, 2011 ONSC 2286, at 65 and 69, the court held that an interim variation of a final support order (and by extension a stay of the support order) requires the moving party to establish:

a. A strong prima facie case for variation;

b. A clear case of hardship;

c. Urgency; and

d. Come before the court with “clean hands.”

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.

19In the present case, the Applicant has consented to a temporary suspension of the support orders as set out in paragraph 4 above. Accordingly, it is not necessary for me to consider each of the four steps set out in the Clark case. The issue before me is not whether there should be a temporary stay, but the scope of the stay. The devil, as they say, is in the details.

20As I read the Respondent’s material, the enforcement of support arrears was his most significant concern and the primary basis for his claims of hardship and urgency. That issue has now been resolved on a temporary basis.

21The second concern raised by the Respondent is the continued payment of spousal support. The Respondent is currently (as of April 2026) required to pay $1,330 per month spousal support based on the terms of the 2016 Final Order. That amount will continue to April 2027, when it will be reduced by 30% to $931 in accordance with the Final Order. It will be reduced by a further 30% in April 2028. Spousal Support will end in March 2029 according to the Final Order.

22The Respondent claims that there was an agreement that he would pay only $900 per month spousal support, although he has not provided any written agreement or confirmation to that effect. He argues that $900 rather than the $1,900 stated in the 2016 Final Order should be the base spousal support amount and that, commencing April 1, 2026, and on each April 1 thereafter, the amount payable should be reduced by 30% from the amount payable on the immediately preceding year. This would mean that spousal support would be reduced to $630 per month as of April 2026 and to $440 per month as of April 2027.

23The Applicant argues that there was no agreement to permanently reduce spousal support to $900 per month. She accepted $900 per month because that was all the Respondent would pay and she had no real alternative except to bring enforcement proceedings.

24A strong prima facie case is one “that will probably prevail at trial or is likely to succeed at trial”: Neville v. Sovereign Management Group Corp., 2022 ONSC 3466, at para. 33. In R. v. Canadian Broadcasting Corp., 2018 SCC 5, the Supreme Court of Canada described a “strong prima facie case” as follows, at para. 17 (footnotes omitted):

This brings me to just what is entailed by showing a “strong prima facie case”. Courts have employed various formulations, requiring the applicant to establish a “strong and clear chance of success”; a “strong and clear” or “unusually strong and clear” case; that he or she is “clearly right” or “clearly in the right”; that he or she enjoys a “high probability” or “great likelihood of success”; a “high degree of assurance” of success; a “significant prospect” of success; or “almost certain” success. Common to all these formulations is a burden on the applicant to show a case of such merit that it is very likely to succeed at trial. Meaning, that upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice.

25Given the evidence provided, I am not persuaded that the Respondent has presented a strong prima facie case to support the prospective stay of spousal support on the terms that he proposes. I want to be clear that I am not deciding the merits of this part of the variation order, only that, on the basis of the record before me on the motion, I am not prepared to find that there is “a strong likelihood” that the Respondent will be successful on this part of the variation motion.

26In my view, the stay of the enforcement and collection of support arrears, as set out in my June 30, 2026 Order, is sufficient to address, on a temporary and without prejudice basis, the urgency and hardship raised by the Respondent on this motion, Accordingly, there will be no change to the Order dated June 30, 2026 with respect to spousal support.

27Finally, the Applicant argues that there has been a material change in circumstances relating to the payment of child support. Given the Order at para. 4 above, the only remaining issue is the payment of child support ($1,764) on each of May 1st, June 1st, July 1st and August 1st while their daughter is on summer vacation.

28The Respondent takes the position that this Order assumes that their daughter will be residing with the Applicant during those four months, which he states is not the case. He argues that when their daughter returns to Canada “she resides with both of us”, although no additional details, such as dates, are provided.

29In contrast, the Applicant alleges that their daughter resided primarily with her in the summer of 2025, and that for the summer of 2026 their daughter has a job in Stouffville and has lived primarily with the Applicant since she returned home from school.

30The onus is on the Respondent to show that he has a strong prima facie case for variation. The Respondent has not provided sufficient detailed information to rebut the Applicant’s evidence or persuade the Court to stay child support completely. Accordingly, there will be no change to the Order dated June 30, 2026 with respect to child support.

Conclusion

31The Order of June 30, 2026 shall continue until the hearing of the variation motion.

32Each party was partially successful on this motion. Costs will depend on whether either party made any valid offers to settle and the timing of those offers.

33If the parties cannot agree on costs, the Respondent may file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this Decision. The Applicant may file responding submissions on the same terms within a further 15 days. Costs submissions should be uploaded to Case Center and forwarded to my Judicial Assistant at Robyn.Pope@Ontario.ca.

Justice R.E. Charney

Released: July 22, 2026

CITATION: Mitchell v. Mitchell, 2026 ONSC 4291