When people get divorced in Ontario the process is finalized with the granting of a Divorce Order or Certificate of Divorce. In addition to completing the actual divorce, the order also outlines the responsibilities of the parties, including items such as child and spousal support. Divorce Orders, sometimes referred to as “final orders” are generally understood to be final, but there are some cases in which a final order can be varied if the facts of the parties’ circumstances change. This is done through a Motion to Vary. In a recent case heard before the Ontario Superior Court of Justice, the court as asked if a father could temporarily vary a final order.

Background

The court described the parties’ through the divorce process as follows, “This has been an unhappily lengthy and contentious proceeding. It has been ongoing since 2010. The court file now comprises 21 volumes of the continuing record. That record is stored in seven banker’s boxes, requiring two large carts to haul it into court. There have been numerous motions and trips to the Ontario Court of Appeal in this and related proceedings.”

Ultimately, the final order issued a requirement for the father to pay $13,800 per month in child support based on an imputed annual income of $645,000. At the time of the hearing, he had only paid $72,236.97 of the $315,457 he had been ordered to pay. The father, arguing he was unable to pay any more, told the court he had suffered a material change in circumstances, leaving him unable to pay child support at the level ordered by the court.

A drop in income

The basis of the material change in circumstances, according to the father, was that his income had dropped well below his imputed income of $645,000. He claimed that his income was $13,000 in 2015, $180,000 in 2016, and $240,000 in 2017. It was his position that in light of his actual income, he had actually overpaid his support obligations. He asked the court to change the amount of monthly child support to $1,129 per month on an interim basis until a proper motion could be heard for a permanent variation.

The mother’s position

The mother was not sympathetic to the father’s stated circumstances. She claimed that the income he presented to the court was the result of a financial expert acting upon instruction from the father and should not be considered in the proceedings. She added the father “comes to the court without clean hands, being in default of support and disclosure orders.”

The test for a variation of a final support order

The court began its analysis by stating that while it does have the authority to stay the enforcement of a final support order and substitute an interim order, the decision to do so should be exercised as an exception rather than a rule. After considering a number of other decisions on the matter, the court determined the test for an interim variation of a final support order requires the moving part to prove:

  1. A strong prima facie case;
  2. A clear case of hardship;
  3. Urgency;
  4. That the moving party has come to court with “clean hands”

In this case, the court reviewed the parties’ conduct and the financial disputes they had engaged in and determined the father had not demonstrated a strong prima facie case. With his failing the first step of the test, the court dismissed his motion.

The friendly, professional lawyers at Borden Family Law have been helping clients with matters related to child support for over 17 years. We understand the emotional and financial stress that sorting through such issues can cause. We also know how important it is for parents to ensure their children will be taken care of when a marriage dissolves. We can help you through the process, finding an optimal arrangement for yourself and all others involved, especially your children. Please call us at 905-576-6090 or reach us online to schedule your consultation today