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by Daniel Gloade on August 31, 2012

The decision of Hunter-Eusebi v. Eusebi 2012 ONSC 4825 shows the importance of parties monitoring the other party’s situation after a final support order is made.  In this case, the Father brought a motion to change a previous child support order.  The original order, dated, March 22, 1999 ordered the Father to pay child support for two children based on his annual income of $71,694.

The Father argued that he overpaid child support because his eldest son ceased to be a child of the marriage several years ago.

The Mother complained that the Father had not disclosed his income tax returns from 2003 to 2012.  This was an important failure because the Father’s income ranged between $155 659 and $193, 131 in the last three years.

The issue before the Honourable Justice McDermid was whether to grant the Father’s interim motion to suspend child support payments.  In other words, the Father wanted the court to vary a final Order (from the initial Application) with an interim order (in the Motion to Change)

Justice McDermid agreed with the Mother’s position that there are two lines of cases with regard to granting an interim order requested in the moving party’s motion for change.  The first line of cases states that there should not be such interim orders.  The other line of cases states that such interim motions should only be granted if the moving party can satisfy three tests

a)      The moving party must make a prima facie valid argument of his or her entitlement to change the previous final order;

b)      The moving party must have clean hands;

c)      The moving party must demonstrate that waiting until the final hearing of the motion to change would create hardship.

Justice McDermid did not decide between the two lines of authority.  He held that the Father was unable to satisfy tests “b” and “c”.

The Father argued that his hardship arose because he was paying legal fees while the Mother was a Legal Aid recipient.  The Father, and not the Mother, had financial pressure to settle the motion.  The compromised his bargaining position.  Second, the Mother was likely spending the child support money as soon as she received it.  Even if the judge at the final hearing ordered the motion to repay child support arrears, it would be unlikely that the Mother would still have such sums available to her.  It was therefore important to the Father that the Mother was denied access to the money.  To that end, the Father proposed that his ongoing child support payments should be paid into court until the final hearing of his motion to change.

Justice McDermind held that the Father would not suffer hardship if the payments continued until the final hearing of the matter.  The Father was still able to pay the child support payments, as evidenced in the Father’s proposal to continue to make the payments but to pay the amounts into court.

Justice McDermid added that the Father’s failure to provide annual financial disclosure would likely violate the “clean hands” test.

This decision reinforces the importance of parties to constantly monitor the underlying assumptions used in making final support orders (payor’s income, whether the beneficiaries are still “children of the marriage”) and to act quickly when there is a change.

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