Court Cases & Orders

When Can You Vary a “Final” Spousal Support Order on an Interim Basis?

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Written by Russell Alexander / (905) 655-6335

When Can You Vary a “Final” Spousal Support Order on an Interim Basis?

The name itself suggests finality:  A Final Order for spousal support.  But under Canadian divorce law, even a Final Order can be changed by the court, if there are new facts that warrant it.  This typically takes place by one of the spouses bringing a Motion to Vary.

However, in some limited circumstances, a Final Order can be changed on an interim basis – meaning even before a Motion to Vary can be heard.   The precise circumstances in which this can take place was the focus of a recent Ontario decision called Berta v. Berta.  The court introduced the background this way:

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.

The result of all that paperwork, as well as 9 days of trial time, was that the husband had ultimately been ordered by way of a Final Order for spousal support to pay his wife about $13,800 a month, based on his income which was imputed to be about $645,000 per year.  He had also been ordered to pay the wife $322,125 in costs.  However, he had paid only $73,000 toward that amount so far, and the support arrears alone totalled $480,000.

Instead of paying the rest, the husband applied to the court on an interim basis for an order requiring him to pay only $1,129 per month, until such time as a full Motion to Vary could be heard.  He based this request on numerous grounds amounting to a material change in circumstances, including a downturn in his business, health considerations, the loss of two key clients in his business, and what he called his wife’s “misconduct” in forcing him to buy out her shares in their jointly-owned business.

The wife countered by stating (among other things) that the husband’s business still earned enough net income to pay the full amount of monthly support – he just chose not to pay.  Plus, the husband had not come to court with “clean hands”:  He was currently in arrears, and had not complied with previous court-ordered disclosure, in one case taking 22 months to provide only partial documentation.

This factual background gave the court the opportunity to conclusively establish the proper legal test for varying a Final Order for support on an interim basis, under Canadian Family Law.   After reviewing the various thresholds that had been used by courts in the past – and while adding that the interim variation of Final Orders should not be routine – the court concluded that it could make such an order in this case if the wife makes out a “clear case for relief”.  The relevant factors include:

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

Applying these tests, the court found the husband had simply not made out a case for an interim order.  In particular, he had not demonstrated even a prima facie case around his alleged decline in business earnings and other financial circumstances – let alone a “strong” one.  There was no evidence that the wife had engaged in any misconduct relation to the forced sale of shares, and the price he received was fair.  His claim to be suffering from various health problems was without proof. He also had not demonstrated any urgency, nor that he would suffer any hardship if he had to keep complying with the original Final Order.  The question of “clean hands” was unnecessary to decide, in light of the shortcomings in meeting the other parts of the test.

The court dismissed the husband’s motion.

For the full text of the decision, see:

Berta v. Berta, 2019

Related Article: The Finer Points on Court-Ordered Interim Support

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.