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by Daniel Gloade on September 29, 2014

The case of Smith v. Nicholson, 2014 ONSC 5476 provides a good summary of the test for an interim motion to vary a spousal support award.  You can find the full text here.

In this case, the parties signed a Separation Agreement that dealt with spousal support.  The parties filed the Separation Agreement at the courthouse and it became, essentially, a court Order.

Since the signing the Agreement, however, the support payor’s obligation to pay child support for three children ceased and his income increased due to his receipt of a severance package. The recipient brought a Motion to Change the court Order’s terms by arguing that she is entitled to more spousal support.   She then brought a motion for an interim (temporary) order for increased spousal support to last until the full hearing of the Motion to Change.

Both the interim and final motions to change the spousal support order are decided at an oral hearing based on Affidavit evidence.  Many judges feel that it is faster if they decide the issue once.  People asking for a change in support complain, however, that the hearing of their Motion will not be scheduled for several months in the future.  Sometimes a party can’t wait.

The Honourable Mr. Justice Mitrow provides a nice summary of the test to determine whether the court should hear an interim (temporary) motion to vary spousal support order.

  1. Does the moving party (party requesting the Order) appear to have a meritorious case?
  2. Does the moving party come to court with “clean hands”? (has obeyed all court Orders, has followed court procedure and has acted fairly to the opposing party)
  3. Does the moving party clearly suffer hardship that needs to be addressed urgently?
  4. Is the difference between the current support amount and the requested rate of spousal support sufficiently large to merit this extra step?  The difference makes the current spousal support Order incongruous, absurd or ridiculous.

In this case, his Honour declined to hear a motion for interim spousal support because:

  1. The recipient argued that the payor was underemployed deliberately.  A trier of fact needs to decide that issue using all available relevant evidence;
  2. The return date for the final hearing of the motion was fast approaching;
  3. Even the recipient could win the motion, the amount she receives now is just outside the lower end of the spectrum of the support she believes she is entitled to receive.  The current order was therefore not incongruous or absurd.

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