In the realm of Ontario Family Law, an interim order is simply a temporary order issued by court, in response to urgent or important issues. A litigant can request it by way of a motion, and once granted it is meant as a stop-gap order that will be in place until a final order or decision can be made.
In a marital separation or divorce, it can cover many pressing topics: short-term issues such as parenting time and decision-making pending trial, child support and spousal support, or which spouse gets exclusive possession of the matrimonial home until a full trial can be held.
Although interim motions can be a necessary procedure for temporarily resolving urgent issues quickly, that speed comes with a price: “rough justice” according to the Alberta Court of Appeal in a case called Rutter v. Rutter.
The facts involved a husband and wife who had been together for 27 years when they separated. The husband had been required to pay his wife $5,000 a month under an interim spousal support order, but this was based on different income figures. The wife claimed he earned as much as $240,000, while the husband said it was much lower.
Even though this was a temporary order – which is by definition of short duration – the husband appealed to the Court of Appeal. Among other things, he complained that the chambers judge had failed to demonstrate how the outcome and $5,000 figure was arrived at.
In upholding that interim order, the Appeal Court conceded that the process for getting one, namely an appearance in “morning chambers” (i.e. early-morning arranged hearings before a Family judge), was not ideal. The court wrote:
[5] As the chambers judge observed, the ‘morning chambers’ for family law cases is not, given the time constraints and often limited financial and other disclosure common in the early stages of litigation, “an elegant place to litigate”. Rough justice – to use the chambers judge’s phrase – is frequently the result. Imperfect as it often is, such a decision is intended to create a temporary remedy and not a permanent solution. The practical effect also is to encourage litigants to move towards a stable conclusion of the litigation process.
The Court added that interim orders are “necessarily made on a less than perfect record. It is a band-aid, not surgery”. On the flip-side, such orders are subject to review and adjustment at a subsequent trial, and can even be adjusted retroactively if the circumstances call for it.
As for the husband’s decision to appeal what is effectively a short-term order, the court discouraged this approach, stating:
[15] This court has repeatedly urged parties to “not waste finite time and money appealing interim orders – time and money better spent achieving an equitable settlement, or getting a final determination at trial of all matters in issue.
Looking at the parties’ substantive dispute here, the Court recognized they disagreed over the correct income figure; however there was evidence suggesting the wife’s higher figure was more in alignment with the husband’s true income, so that was the right one to use for an interim order. Besides, the $5,000 a month was lower than the Spousal Support Advisory Guidelines would have called for, at that higher income level. The court dismissed the husband’s appeal.
For the full text of the decision, see:
Rutter v Rutter, 2024 ABCA 11 (CanLII), <https://canlii.ca/t/k25h0>
