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

 

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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

At Russell Alexander Collaborative 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 RussellAlexander.com

 

Lori Dubin joins the team at Russell Alexander Collaborative Family Lawyers

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Lori Dubin is now an associate lawyer at Russell Alexander Collaborative Family Lawyers. She is recognized for her client-centered approach and efforts to provide practical and efficient advice in order to achieve the best possible results. She has extensive experience in resolving high conflict cases and successfully settles most of her cases prior to trial.

Lori has practiced law for over 15 years. Prior to working in family law, Lori had 11 years of experience as a criminal trial lawyer with a focus on crimes arising out of domestic relationships. During her academic career, Lori was the recipient of several scholarships based on her academic achievement at York University. She achieved magna cum laude in her final year of her Honours Bachelor of Arts degree program in Psychology and Mass Communications.

Lori studied for her LLB at Osgoode Hall Law School, graduated in 2003 and was called to the bar after a year of Articling for a prominent Toronto firm. She’s trained new lawyers at the Law Society of Ontario’s Law Practice Program, acted as an articling principle, adjunct professor at various institutions, and commentator on Court TV Canada. Lori is an active member of the Toronto Lawyers Association and the Toronto Family Law Association. She has served her community on numerous Legal Aid Panels and Pro Bono assignments.

Aside from working, Lori has a very active family and social life. She is a fitness enthusiast and loves dogs, especially her own toy poodle.

Welcome to the team, Lori!

 

 

Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

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Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

On a recent ruling to allocate costs of the litigation between a former couple that lasted almost two decades, the court had some pointed comments about self-represented litigants in general, and about the wife’s unreasonable conduct in the case, specifically.

The court began its judgment this way:

A New Year

It is 2019, and Ian and Katherine Kirby, after 17 years, have a Final Order in their marathon matrimonial struggle.

There is one more battle to fight, however – costs.

The Judgment

The trial, more like a sentence than a sojourn, lasted ten days.  Katherine acted for herself, and she is responsible for much of the prolongation of the hearing.

Although the divorce itself was agreed upon, the court listed the many specific legal issues that needed to be resolved through litigation between the former couple.  Each spouse had been successful on some issues and not others, and some had garnered only “mixed” success.  Overall, however, the court concluded that the husband was more successful in the outcome than the wife, and that he was more deserving of costs.

The court then made some general comments about self-represented litigants:

The proliferation of self-represented litigants in family law cases is here to stay.  I suspect that there are many reasons for that: cuts to legal aid services, the self-help resorted to on the world wide web, and (let us not be so naïve to ignore) the voluntary choice by some litigants to act for themselves because they think that the judge will be forced into being their advocate.

With respect to the latter category of self-represented litigants, it is time that we recognize that there are some (not most, maybe even not many) persons who can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom.  It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.

There is nothing wrong with self-representation.  What is wrong, though, is hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs.

We do not have two sets of rules and principles for costs in family litigation – one for those who hire lawyers and one for those who act for themselves.

It then elaborated on what a court’s guiding principles are when awarding costs:

The principles apply to both types of litigants: (i) in deciding entitlement to costs, consider the presumption that a successful party deserves some costs, and consider the factors outlined in the Family Law Rules, and take into account any other relevant circumstance; (ii) in deciding quantum of costs, remember the basic tenet that the goal is to achieve something that is fair, just and reasonable, and keep in mind the prudent expectations of the parties, and pay attention to the importance of proportionality, and assess (but do not dissect line by line) the reasonableness of the time spent and the fees and disbursements charged.

The court added:

Above all, place some emphasis on why we award costs to begin with – to partially indemnify successful litigants, and to encourage settlement (even where the final result was worse than what the party offered to settle for), and to sanction and deter inappropriate conduct by litigants (even behaviour that falls short of “bad faith”).

The process by which we decide costs is not science.  It is more artful than that.  Consequently, there is an inescapable degree of arbitrariness to any costs award.  To pretend otherwise, I respectfully suggest, is a little rich.

The court then examined the spouses’ respective conduct during the course of the litigation.  In fairness, it noted that both spouses were responsible for the fact that the file languished for years and years. But it credited the husband for making greater efforts to settle without a trial, for being better prepared, and for behaving “much more admirably during trial”.

On the other hand, the wife’s conduct was unreasonable:  She made late-breaking “wild allegations” of being raped by her husband, and failed to comply with prior orders.  Even her submission on costs was filed late, after being granted an extension, and it did not comply with the court’s express directions on its length.  (The court read it nonetheless, as a courtesy).

As the court summed it up:  “She single-handedly caused the hearing to be significantly longer than it should have been” and her conduct in the past two years or so was “worthy of serious condemnation by this Court”.

It concluded that the case “ought to have never went to trial,” and that “awarding to [the husband] every cent of the $190,438.63 is in the cards”.

However, the court noted that the wife is “indeed, mentally ill”, a fact confirmed by the family physician’s evidence, and surmised that some of her unreasonableness is due to her psychological issues.  Concluding that this militated against awarding the husband his full costs, the court reduced the total to an even $150,000, all-in.  Those costs were to be immediately deducted from the wife’s share of the proceeds of the matrimonial home.

For the full text of the decision, see:

Kirby v. Kirby, 2019

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 RussellAlexander.com

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