The Finer Points on Court-Ordered Interim Support
As regular readers of my Blog likely know, in cases of separation and divorce the entitlement to child or spousal support is governed mainly by Canadian federal law, and (to a lesser extent) by Ontario legislation. Those laws allow a court to make a final order that intends to fully address the estimated future needs of former spouses and children, taking into consideration the various factors that have been established as being relevant to assessing need.
As much as it would be ideal for a court to be able to make such an order immediately, from the moment the couple irrevocably separates, the reality is that the process leading to a formal divorce is lengthy and often costly, and that the parties’ needs and means remain pressing and immediate, yet may change over time.
For this reason, Canadian law empowers a court to make one or more temporary or “interim” orders for support, which are intended to address the support recipients’ needs on a shorter-term basis, pending the full resolution of the issues that arise from the dissolution of the couple’s relationship.
These temporary orders (which at one time were called “interlocutory”), are generally governed by the same considerations that affect a court’s decision-making on final orders: Child and spousal support rights/obligations arise from sections 15.1 and 15.2 of the Divorce Act, respectively, with additional guidance being given by the Spousal Support Advisory Guidelines and the federal Child Support Guidelines. For example, section 15.2 set out the specific factors that must be considered when making either an interim or final order, including:
• the length of time the spouses lived together;
• the functions each of them performed;
• any order, agreement or arrangement relating to the support of either of them.
The section also sets out in detail the various objectives that the court should strive to meet when making either a final or temporary award.
However – and despite the overall similarity in approach – courts have also recognized that the objectives of a final order versus an interim order are not identical, and that there are slight nuances in the assessment exercise. Plus, each case is different, and the court must balance the factors as the situation dictates.
For this reason, an Ontario case from a few years ago named Driscoll v. Driscoll remains helpful in formulating an approach to interim orders in particular, by providing an added list of governing principles. The court, citing a contemporary B.C. decision named Robles v. Kuhn, endorsed the following eight points:
(1) On applications for interim support the [support recipient’s] needs and the [support payor’s] ability to pay assume greater significance;
(2) An interim support order should be sufficient to allow the [recipient] to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
(3) On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
(4) The courts should not unduly emphasize any one of the statutory considerations above others;
(5) On interim applications the need to achieve economic self-sufficiency is often of less significance;
(6) Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional circumstances indicate otherwise;
(7) Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
(8) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
The court in Driscoll also emphasized that these principles are not exhaustive; rather they are intended to assist the court in providing a “contextual analysis”.
Do you have questions about your interim support rights or obligations? Contact us for some advice that is tailored to your unique situation
For the full text of the decision, see:
Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC)
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com