Interim Support variation disputes can occur both before trial and a correction by way of an interim support variation can occur at the trial once all of the evidence has been properly put before the trial judge. Interim support orders are made on incomplete evidence and without benefit of seeing and hearing witnesses and observing them being cross examined under oath. The law is clear that a trial judge can make an interim support variation at trial and they are not bound by the interim order.
Call us toll free at 1-877-602-9900 if you have questions about a interim support variation dispute.
To make an appointment click here and we will meet with you promptly at any one of our 4 office locations.
So, what are the rules to be applied in BC for an interim support variation that occurs at the trial of the action to ensure proper interim support was paid between the date of separation and the date of trial?
In a recent appeal court interim support variation appeal decision of Ford v Ford, 2015 SKCA 23, the court reviewed the Canadian law on the point including a BC decision of Mr. Justice Perlman:
[24] In my respectful view, the trial judge erred in law in concluding that he had to find a material change in circumstances to justify a variation of the amount set out in the interim order of April 26, 2010. Let me explain why.
[25] Sections 15.1 and 15.2 of the Divorce Act, RSC 1985, c 3 (2d Supp) provide the Court with the authority to make an interim child support order and an interim spousal support order. An interim order is only effective until a final order is granted under those provisions of the Divorce Act. Such interim orders do not bind the trial judge when he or she is called upon to make a final order.
[26] With respect to interim child support orders, Payne and Payne have commented on trial judges’ authority vis-à-vis existing interim child support orders. They state:
… Although section 17 of the Divorce Act relates only to applications to vary permanent orders and section 15.1 of the Divorce Act includes no express provision for the variation of interim orders, a court has inherent jurisdiction to vary an interim order. In ordering permanent child support, a trial judge is not bound by a pre-existing order for interim child support. An amount payable under an interim order may be adjusted retroactively by a trial judge, if an erroneous assumption was made concerning the obligor’s income. [emphasis added]
See: Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 5th ed (Toronto: Irwin Law, 2013) at 453-454.
[27] In Gill v Gill, 2012 BCSC 1910 (CanLII) [Gill], the British Columbia Supreme Court did just that. Rather than varying a longstanding interim order for child support under s. 17, Pearlman J. exercised his authority to make a final child support order. After noting that the child support order that Mr. Gill sought to vary was only an interim order, Pearlman J. stated:
[51] … At trial, the court exercises its jurisdiction to make a final order rather than to vary an interim order. Accordingly, in my view, this court’s jurisdiction to make an order respecting ongoing child support is governed by s. 15.1, rather than s. 17 of the Divorce Act. …
Whether or not there has been a material change of circumstances in the period since the interim order for child support had been made was therefore held not to be the appropriate test. Instead, Pearlman J. considered the application as if no prior order had been made.
[28] The same line of reasoning was followed with respect to interim spousal support by the Newfoundland and Labrador Court of Appeal in Whelan v Whelan, 2005 NLCA 24 (CanLII), 246 Nfld & PEIR 317 and the New Brunswick Court of Appeal in Grant v Grant, 2012 NBCA 101 (CanLII), 397 NBR (2d) 254 [Grant]. In Grant, the New Brunswick Court of Appeal—deciding the question of whether an interim order for spousal support is binding upon the trial judge’s final determination on the same issue addressed by the interim order—concluded that “[c]learly, the answer must be answered in the negative.”
[29] There is no justifiable basis for a trial judge’s authority to be restricted by an interim order for child or spousal support. As Zuber J.A. held in Sypher v Sypher (1986), 2 RFL (3d) 413 (Ont CA), “interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible to error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.” Indeed, “a full investigation of the facts” may show that “a substantially different order” from the interim order is necessary. The purpose of interim orders, coupled with the fuller factual matrix in which a trial judge renders his or her decision, requires that the trial judge’s discretion to make a support order remain unfettered by a prior interim order.
[30] In short, the trial judge is not bound by any existing interim child or spousal support order. He or she is instead required to conduct a fresh analysis without regard for whether there has been a “material change in circumstances.” A fresh s. 15.1 or 15.2 analysis—rather than a variation analysis under s. 17—is appropriate. This approach removes the burden on the support payor of proving a material change of circumstances since the date of the interim order. The trial judge relies on the evidence before him or her to make a final order. The final order must still be made in accordance with the Federal Child Support Guidelines and the law pertaining to spousal support.
[31] With this approach in mind, the question that the trial judge should have answered is whether the arrears that accrued under the interim order for child and spousal support should have been adjusted retroactively. After a meticulous review of the evidence, the trial judge determined that Mr. Ford’s 2011 income for child support and spousal support purposes was $150,000 per annum and not $189,000 as set out in the April 26, 2010 interim order. In my respectful view, the trial judge erred in determining that a variation under s. 17 was required which seems to have prevented him from looking at this income from the standpoint of adjusting the payments retroactively. The interim order of April 26, 2010 provides no details of how Mr. Ford’s income was determined. As noted above, the Chambers judge in the judgment dismissing one of the applications to vary the interim order questioned the correctness of the $189,000 as being too high. These facts, combined with the explicit finding that Mr. Ford’s income in 2011 was $150,000 and not $189,000, lead one to conclude that a retroactive adjustment of child and spousal support back to January 1, 2011 was justified and I would so order.
Our Interim Support Variation lawyers are part of BC’s largest and one of the most experienced family law team. We have 4 offices across BC and act throughout the province and in Alberta by request. Call us toll free at 1-877-602-9900 if you have questions about a interim support variation dispute.
