How Do I Correct Interim Support Orders At Trial? Our ultra high net worth divorce and family lawyers get asked this question a lot. In today’s blog, MacLean Law’s founder Lorne MacLean KC explains what the stakes are in these cases and highlights one of their record upward support corrections for their delighted client who had her interim support increased to $100,000 a month at trial backdated several months.
MacLean also reviews a new BC Court of Appeal decision where a wife had to repay all of her interim spousal support and how interim support adjustment at trial is different from a retroactive support variation.
Record High UHNW Spousal Support Lawyers Tel: 604 602 9000
In our record UHNW spousal support and property division win in Devasthanam, the wife received roughly 6 million of lump sum spousal support, $25 million in property and $1.5 million in special costs sanctions. At trial the husband sought to decrease the amount of interim support paid from the date separation while MacLean Law countered and doubled down by seeking an increase for the wife. MacLean Law won a huge $1.2 million increase increase as follows:
[368] Taking everything into account, I conclude that a fair award of spousal support in this period is $100,000 per month. This should suffice to cover the debt servicing charges, expenses of property ownership, and taxes, with an amount left over for Ms. Devathasan to spend on herself that is roughly equivalent to what Dr. Devathasan has been spending on himself.
[369] I would not adjust this amount to reflect the fluctuations in Dr. Devathasan’s income since July 2016. It is an amount based on my assessment of the parties’ means, needs and circumstances over the entire period.
[370] In consequence, I conclude that the interim monthly spousal support award of $62,958 was too low, and Ms. Devathasan is entitled to additional support of $37,042 per month for the period covered by the interim order, that is, September 1, 2016 to April 1, 2019. The total over 32 months is $1,185,344.
How Do I Correct Interim Support Orders At Trial? Tel: 604 602 9000
Interim support is awarded after a brief hearing, without witnesses on the stand, and on incomplete data. These hearings are based on affidavit evidence, where the parties may not yet have made full disclosure, where the case is in its infancy and facts are not yet clear and without the benefit of cross examination enabling a credibility assessment. However at trial, which often occupies weeks, there has been document disclosure and cross examination occurs after witnesses take the stand enabling a full and proper hearing and careful consideration by the trial judge who may reserve his decision for weeks as they carefully assess the documents and evidence of the parties.
In Lamoureux v. Hedquist 2025 BCCA 438, in contrast to our huge win in Devathasan where the ex-wife received a record upward correction of interim support, the wife had to repay the interim support she had received before trial as it was found at trial she was not entitled to it:
[51] The effect of the order is that the appellant had to repay about $90,000 in interim support she had received by court order.
[52] The principal issue on this part of the appeal is whether the judge erred in ordering a “retroactive repayment … without any analysis of the legal framework for retroactive variation of interim support orders”. The appellant says the proper result is to set aside the order for retroactive repayment and to order only that support payments cease as of the order at trial.
[53] Much of the appellant’s argument focused on the principles engaged when a final order for support is varied. The appellant drew heavily on the principles discussed in D.B.S. v. S.R.G, 2006 SCC 37 and Colucci v. Colucci, 2021 SCC 24. Those principles do not have a direct application to this case, because here the judge was making a final order to replace an interim order. He was not varying a final order for support. Several of the factors that drive a D.B.S. analysis when a final order is being retroactively varied do not operate in the same way when an interim order is replacing a final order. This is because interim orders are temporary orders designed to do rough justice on an incomplete record, to get the parties to trial where entitlement to support can be determined on a proper record. This obviously affects the kinds of expectations the parties can reasonably have about the predictability and certainty of continuing support and when notice exists that appropriate levels of support are in issue.
[54] The relationship between interim and final orders was helpfully described by the Albertal Court of Appeal in Durocher v. Klementovich, 2013 ABCA 115 at para. 20:
[20] The general rule is that the trial judge will revisit and adjust the amounts of support provided for in any interim orders: MacMinn v MacMinn (1995), 1995 CanLII 6247 (AB CA), 174 AR 261 at para. 13, 17 RFL (4th) 88 (CA); Lapp v Lapp, 2008 ABCA 15 at para. 19, 425 AR 232, 93 Alta LR (4th) 1; Hartley v Del Pero, 2010 ABCA 182 at para. 9, 27 Alta LR (5th) 248, 487 AR 248. That is the expectation of the parties, and the assumption upon which interim orders are made. Interim orders are made to recognize that the children need immediate support, and that they cannot abide the amount of time it takes to prepare a case for trial. Such interim orders are often made on incomplete data, before full disclosure of all the relevant information by each party, based on estimates about future income, and after summary proceedings in chambers. It is almost inevitable that they will not be completely accurate. The trial judge, having a much better record, extends no “deference” to those interim orders. While there may be an element of “retroactivity” in the process, that is not generally an impediment: D.B.S. at para. 68. When an interim order is made, it is anticipated that it will be revisited at trial, and the perceived unfairness of any retroactive adjustment is considerably reduced. Further, since orders are presumptively valid, a parent who pays in accordance with an interim order, even knowing that it might be varied at trial, will generally not have engaged in “blameworthy conduct”: D.B.S. at paras. 65, 108.
[55] Durocher has been applied in Alberta many times, most recently by the Alberta Court of Appeal in Strawson v. Strawson, 2024 ABCA 126.
[56] This analysis is reflected in the comments of Justice Frankel in de Rooy v. Bergstrom, 2010 BCCA 5:
[43] [It] is clear from Newson v. Newson (1998), 1998 CanLII 6440 (BC CA), 65 B.C.L.R. (3d) 22 (C.A.), that interim support orders are a summary mechanism for imposing short-term solutions: para. 11. Such orders give the parties time to resolve matters either by agreement or, if necessary, through litigation. When, after an interim order has been made, a judge determines, following a hearing on the merits, the level of support that is appropriate, he or she is not varying the interim order, but making a new order. That is what, in substance, occurred here.
[57] The differences between interim and final orders and how they may affect, for example, the availability of retroactive orders for support is also reflected in Roeske v. Roeske, 2023 BCCA 358 at paras. 29–35, in which this Court concluded that a trial judge had not erred in his analysis of the relationship between the two.
[58] It follows that the D.B.S. factors need to be tailored to the different circumstances engaged when a final order is replacing an interim order. I accept that in deciding whether to order repayment of overpaid support as a result of a final order, a judge has a discretion informed by the circumstances of the parties. There may well be situations in which as a result of the hardship created, repayment should not be ordered. That analysis, however, would need to reflect the implications of the differences between interim and final orders described above.
Vancouver How Do I Correct Interim Support Orders At Trial? Tel: 604 602 9000
Correction of interim orders are not retroactive support as many clients and some lawyers think. we hope this blog has answered your question: How Do I Correct Interim Support Orders At Trial?
