Does the test for interim variation of parenting orders apply to interim variation of support orders?

Background:

The parties were married for 11 years and separated in July 2009. There are two children of the marriage, A (21 years old in university) and T (17 years old in high school). On June 4, 2012, the parties resolved all their parenting and child support issues by way of final order on consent. The order mandated the father pay child support in the amount of $1,115.00 per month. The order did not contemplate the parties sharing post-secondary expenses. The mother’s position is that Y.H. did not pay proper child support which includes failure to contribute to post-secondary expenses. The mother brought a Motion to Change in November 2020, and within that sought a temporary order and asked the father:

1. pay increased child support retroactively;
2. contribute 58% towards the costs of post-secondary expenses for the children (as per the parties’ income)
3. pay child support arrears for the children from 2013-present in the amount of $43, 744.45

Analysis:

The Court retains a limited discretion to vary a final order on a temporary basis. The mother is seeking a request for partial summary judgement, which would provide temporary relief that she seeks on a final basis on consent of a final order.

In what circumstances can and should a Court grant temporary relief in the face of a pending Motion to Change?

Section 17(4) of the Divorce Act provides that an order under section 17(1) may only be issued if the moving party (in this case the mother) satisfies the Court that there has been a material change in circumstance.

In S.H. v. D.K. 2022 ONSC 1203, the Court described the test for granting temporary variation of a final order to be stringent and the supporting evidence must be compelling.

This stringent test

1. 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,
2. limits the amount of judicial resources that are allocated to cases which have already been resolved by way of a court order, and
3. 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.

However, this case was to vary a parenting order, not a support order, in the present matter, J Diamond seeks to find whether this can be applied to parenting.

In F.K. v. A.K. in the statement of law, the motion judge agreed there must be compelling evidence to support changing a final order on an interim basis. He warned that the stringent test should not be read in a manner that puts too much emphasis on maintaining the status quo.

Justice Diamond found no compelling or exceptional reason to depart from this approach to deal with a temporary request to vary existing final support orders:

“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.”

“It will be recalled that Pazaratz J. in F.K. v. A.K. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional wellbeing 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.”

Justice Diamond found that to vary a support order on an interim basis, the mother had to show there had been compelling and exceptional circumstance.

Conclusion:

The original support order did not address post-secondary expenses, and those were addresses as follows:

• 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.
• The Respondent shall pay the Applicant arrears for A’s outstanding postsecondary expenses in the amount of $9,974.15.

Justice Diamond found that there was no compelling or exceptional circumstance. The temporary relief sought by the mother is dismissed, but there will be a Motion to Change in the future.