Court File and Parties

Court File No.: FS-25-00047180-0001

Date: 2026-02-10

Superior Court of Justice - Ontario

Re: Stephen Arthur Hardacre, Applicant And: Family Responsibility Office, Respondent

Before: Justice Kraft

Counsel: Samantha Dineno, for the Applicant Sobika Sadacharam, for the Respondent

Heard: February 10, 2026

Endorsement

Nature of Motion

[1] The applicant, Stephen Hardacre ("Stephen"), is seeking an order staying the enforcement of and the underlying order for spousal support, dated June 26, 2019 ("2019 support order." The 2019 support order incorporated the terms of the parties' interim without prejudice agreement requiring Stephen to pay the applicant, Nadia Chiarotto ("Nadia"), spousal support in the sum of $5,700 a month, payable as $2,850 on the 1st and 15th day each month starting on June 1, 2019. Stephen also seeks to have the Director of the Family Responsibility Office ("FRO") refrain from notifying the credit agencies that he is in default of this order.

[2] The FRO seeks a dismissal of Stephen's stay motion and submits that Stephen does not meet the test for a stay of the enforcement of or the underling spousal support order dated June 26, 2019 ("2019 support order").

[3] Nadia issued the within application in June of 2025. She filed the parties' interim without prejudice separation agreement on March 4, 2025. She did not serve Stephen with the Application properly. The first accrual of spousal support was added in July 2025 and every month thereafter. According to the Director's Statement of Arrears, Stephen is in arears of $45,600 as of February 4, 2026, which is 8 months of unpaid spousal support payments.

[4] The Director has a statutory obligation under s.5 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c.31 ("FRSAEA") to enforce the 2019 support order and, as a result, Stephen was sent a Notice of Intention to report the Payor to Credit Bureaus on November 8, 2025.

[5] The Notice advised Stephen that he had 15 days to take one of three actions, being a) to pay the full arrears which were $28,500 as of November 8, 2025; b) pay the amount he missed and now owes if the 2019 support order had an arrears payment schedule; or c) enter into a payment arrangement with the Director.

[6] Stephen did none of the three options sent out in the Notice. Instead, he sent the Director a letter, dated December 16, 2025, along with these motion materials to stay the enforcement of the 2019 support order. As a result, the Director has temporarily placed a hold on reporting Stephen's arrears to the credit bureau agencies.

[7] Further, Stephen filed an Answer, dated December 4, 2025, responding to Nadia's Application to deal with the corollary relief stemming from their separation, including a dismissal of her claim for ongoing spousal support, recission of arears and credits for spousal support made by him retroactive to the date of separation from June 2019 to February 2023.

[8] Stephen is soon to be 69 years of age. He is currently living off savings, collecting Canada Pension Plan and Old Age Security benefits. He retired in 2022, gave notice of his retirement Nadia and believed they were negotiating in good faith. He did not know that Nadia filed the 2019 support order with the court for enforcement in March of 2025.

Issues to be determined

[9] The issues for me to decide on this motion are as follows:

a. Does Stephen meet the test to be granted a stay of the underlying 2019 support order, namely,

i. Has he made out a strong prima facie case for variation?

ii. Has he demonstrated a clear case of hardship;

iii. Has he demonstrated that there is urgency?

iv. Does he come to court with clean hands?

Background

[10] By way of background, the parties began to cohabit in September 2002. They were married on September 21, 2012. They separated on February 12, 2019.

[11] They have one child, age 20. The child lived primarily with Stephen since the separation. He is currently in 2nd year University at the University of British Columbia and resides with Stephen in the summer and during holidays. Nadia has never paid child support to Stephen for the child.

[12] Stephen was employed as an actuary at Reinsurance Management Associates Inc. during the parties' marriage and until he retired on May 31, 2021. Nadia was employed as a teacher at the York Catholic District School Board until the separation. Following the separation, Nadia applied for long term disability benefits and is in receipt of long-term disability.

[13] On June 26, 2019, the parties entered into an interim separation agreement. The agreement settled the issue of temporary child and spousal support on a without prejudice basis. Pursuant to this agreement, Stephen agreed to pay Nadia spousal support of $5,700 a month starting June 1, 2019. Nadia did not pay child support to Stephen despite being in receipt of long-term disability benefits. Stephen also paid for 100% of the child's tutoring and camp expenses, without contribution from Nadia.

[14] Stephen complied with the interim separation agreement and paid spousal support to Nadia in the sum of $5,700 a month from June 2019 to February 2023.

[15] In early 2021, Stephen was notified by his employer that after 14 years of employment, he would be laid off. He was 64 years of age at the time and he negotiated a severance package, earning his base salary and bonus until November 30, 2022.

[16] Stephen notified Nadia of this material change in his circumstances and provided her with disclosure of his severance package through counsel. Stephen's counsel at the time, sent correspondence to Nadia's counsel, dated November 11, 2022, advising that the parties must amend the support provisions of the interim separation agreement and in accordance with the agreement, provided notice under paragraph 6.1(b) of the agreement that Stephen will continue to pay spousal support of $5,700 a month until January 31, 2023. The parties were then negotiating their outstanding matters and exchanging financial disclosure.

[17] Stephen believed that he and Nadia, through direct negotiations, resolved the outstanding financial issues arising from their separation in March 2023. Nadia then retained new counsel and resiled from the agreement. The parties continued to negotiate until Nadia issued the within application issued on January 21, 2025.

[18] Unbeknownst to Stephen, Nadia filed the interim, without prejudice separation agreement with the Ontario Superior Court, Family Court in Newmarket on March 4, 2025, even though the parties were engaged in ongoing negotiations and despite the fact that she had full knowledge that Stephen was retired.

[19] On November 20, 2025, Stephen received the Notice of Intention to Report the Payor to Credit Bureaus from the FRO, dated November 8, 2025.

[20] Immediately, Stephen took steps to prepare and file an Answer to Nadia's Application, dated December 4, 2025, and brought this motion to stay the 2021 support order.

The Law on being granted a stay of an underlying support order

[21] Section 8(1) of the FRSAEA requires the Director of the FRO to cease enforcement of a support obligation if the support obligation is terminated.

[22] The Director is mandated to continue enforcing the ongoing spousal support obligation pursuant to the 2019 support order, until such time the court varies, terminates or stays the support obligation and/or the arrears.

[23] Pursuant to s.20(6) of the FRSAEA enforcement of a support deduction order is not affected by a stay of enforcement unless the support order is also stayed. To obtain a full stay of enforcement, the Payor must not only obtain a stay of enforcement of the arrears against the FRO/Director, but also a stay of the underlying support order against the Recipient.

[24] 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."

[25] 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.

[26] Another way to consider the second prong of the test, namely, hardship, is to ask whether the continuation of the existing order would be incongruous and absurd (which includes a consideration of urgency): See Michael v. Michael, 2024 ONSC 3107, at para. 8.

[27] 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 v. Damaschin-Zamfirescu, 2012 ONSC 6689, at paras 19-20.

[28] As recently found in Michael v. Michael, where a support order is made, on consent, "without prejudice", the test to prove a material change in circumstances is lower. 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.

Issue One: Has Stephen demonstrated a prima facie case for variation?

[29] I find that Stephen has met prong one of the stay test and has established a prima face case for variation. Stephen was terminated/retired on May 30, 2021. This was two years after the parties had entered into their interim without prejudice support agreement. Given that he was no longer earning employment income that is a clear material change in circumstances. The terms of the parties' temporary without prejudice support agreement provided for a material change in circumstances and, in accordance, with the agreement, Stephen's counsel notified Nadia's counsel, that he would continue to pay her spousal support until his severance ran out on January 31, 2023. I find that Stephen's retirement clearly constitutes a material change in his circumstances.

[30] Further, the support order that was in place at the time of the material change in circumstances arose from a temporary without prejudice agreement, which means the threshold of material change in Stephen's circumstances is lower than it would be if he were trying to vary a temporary order that was not without prejudice.

Issue Two: Has Stephen demonstrated a clear case of hardship - has he established that it would be incongruous and absurd to continue the 2019 support order?

[31] The payor must also establish clear hardship, one that would show that the continuation of the 2019 support order would be "incongruous and absurd" and/or "inappropriate, unreasonable or ridiculous." See Raaflaub v. Gonosch, 2020 ONSC 1578, at para. 33.

[32] Stephen submits that the hardship is that he cannot pay the spousal support set out in the 2019 support order because he would have to deplete capital to do so, given that he is earning no employment income. Stephen did not choose to retire. Rather, he was terminated and did his best to negotiate a severance.

[33] At the time the 2019 support order and the underlying temporary without prejudice agreement was entered into Stephen was earning $283,774 in 2018. The spousal support obligation was based on that level of income. Since Stephen retired, his fixed income is about $55,000 year, which is a significant material change in his financial circumstances.

[34] The Director argues that there is no hardship to Stephen because his sworn financial statement indicates that he has assets valued at $1.4 million. However, Stephen argues that this is comprised of his interest in the jointly matrimonial home and registered investments which will be subject to equalization with Nadia. Further, he argues that Nadia's entitlement to spousal support is a live issue with which he does not agree. He submits that he will experience hardship if he is required to pay spousal support on his fixed income of $54,695 a year.

[35] In Stoyles v. Stoyles, 2022 ONSC 6546, at paras. 33-34. 47-51 and 55, the court determined that the payor had demonstrated a clear case of hardship, having regard to the fact that the matter would not be reached for trial for a lengthy period. The court also considered the fact that the issue of entitlement to spousal support had yet to be established and that it would be inappropriate for the payor to continue to pay spousal support, having regard to his monthly pension income.

[36] In this case, the first case conference is scheduled on May 25, 2026. There will not be a final determination of the issue of Nadia's entitlement to spousal support for some time.

[37] On these facts, I conclude that Stephen has established hardship and that it would be incongruous and absurd that he continues to pay Nadia spousal support of $5,700 a month, when his annual income is only about $55,000 a year.

Issue Three: Has Stephen demonstrated urgency

[38] Stephen argues that he and Nadia have always been in negotiation about their outstanding issues, and about spousal support. Nadia issued the within Application in January of 2025, and did not serve it on Stephen personally. He did obtain a copy of the Application from his lawyer. When he learned that Nadia had taken enforcement steps of the 2019 support order in March 2025, which was well after she was aware that he had retired and no longer had employment income, he took immediate steps to serve and file an Answer and prepare this stay motion.

[39] The FRO claims that Stephen did not explain why he did not serve his Answer on Nadia until December 5, 2025, which was 12 months after Nadia had issued her Application. In other words, the Director asserts that urgency has not been established since Stephen did not take earlier steps to formally terminate the 2019 support order.

[40] I find that the issue of urgency and hardship are somewhat intertwined. I find that Stephen has demonstrated urgency because the spousal support arrears have now accumulated to an amount that is equal to his annual fixed income. This cannot wait until a trial of this application happens. Further, there is sufficient urgency to warrant the relief he seeks. As soon as he became aware that Nadia would no longer negotiating in good faith and, instead, decided to enforce an agreement which he had stopped following two years earlier, he took steps to deal with it. I am persuaded that it is urgent that the stay is granted given Stephen's limited financial circumstances, and that Stephen has, therefore, met the third branch of the test.

Issue Four: Does Stephen come to court with clean hands?

[41] The fact that Stephen is in arrears of the 2019 support order does not, without further evidence, sully his hands. A payor in default should not be foreclosed, nor unduly hampered, if he takes the proper procedural steps to have the issue of whether the support order should be changed placed before the court. Nor should he (or she) dawdle in doing so: See Hammond v. Ontario (Director, Family Responsibility Office), 2013 ONCJ 24, at paras. 14 and 21.

[42] In this case, Stephen took the proper procedural steps as soon as he became aware that Nadia had taken enforcement steps. He filed a responding pleading and brought the within motion for the stay of the order and a stay of enforcement of the order.

[43] The FRO argues that Stephen unilaterally stopped paying spousal support in February 2023 even though the parties had not reached an agreement to terminate the spousal support.

[44] I am persuaded that Stephen was of the belief that he and Nadia were negotiating the spousal support and other issues corollary to their marriage breakdown after his severance had run out. I also find that Stephen gave Nadia significant advance notice of his material change in circumstances and believed in good faith that the parties had reached an agreement in 2023. He had no reason to believe otherwise, since Nadia, herself took no steps to start any proceeding. Further, Nadia did not file their interim without prejudice support agreement with the court until March of 2025. Stephen had stopped paying spousal support in February 2023. This is a two-year period where neither party had taken a step to terminate the spousal support because they were negotiating. In these circumstances, I find that Stephen comes to court with clean hands as he relied on Nadia's inaction in arriving at this conclusion.

[45] The FRO submitted that if the Court is satisfied that Stephen met the test for an order for a stay of the underlying support order and a stay of enforcement, the Director will adjust its records accordingly and stay the enforcement of the 2019 support order.

ORDER

[46] This court makes the following order:

a. Effective immediately, the temporary spousal support order, dated June 26, 2019 (domestic contract), shall be stayed and suspended until a determination of the spousal support issues in the proceeding between the applicant and respondent, Court File number FS-25-00047180-0000.

b. The support deduction order arising from the temporary spousal support order, dated June 26, 2019 (domestic contract) shall be stayed and suspended immediately, until a determination of the spousal support issues in the proceeding between the applicant and respondent, Court File number FS-25-00047180-0000.

c. There shall be no further enforcement of the support provisions of the temporary spousal support order, dated June 26, 2019 (domestic contract) by the Family Responsibility Office, until a determination of the spousal support issues in the proceeding between the applicant and respondent, Court File number FS-25-00047180-0000.

d. The parties are encouraged to resolve costs. If they cannot agree, a party seeking costs shall serve and file costs submissions of no more than 3 pages, not including a Bill of Costs or Offers to Settle within 10 days of the release of this Endorsement. The responding costs submissions (same page length) shall be served and filed within 7 days of being served with the initial costs submissions.

Kraft, J.

Date: Feb 10, 2026