Form and Types of Order

• Jurisdiction: Canada
• Pages: 446-512
• Author: Julien D. Payne,Marilyn A. Payne

446

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Form and Types of Order

A. DIVERSE TYPES OF ORDER

e diverse types of support order that may be granted pursuant to sections 11 and 12 of the

Guidelines are as follows:

1) An order to pay a lump sum;

2) An order to secure a lump sum;

3) An order to pay and secure a lump sum;

4) An order to pay periodic sums;

5) An order to secure periodic sums;

6) An order to pay and secure periodic sums.

e court is not restricted to making only one type of order. A combination of the various

types of order may be accommodated.

When child support is granted, it is usually ordered to be paid on a periodic basi s — weekly,

fortnightly, or monthly. A court has no jurisdiction under section 12 of the Guidelines to order

an obligor to transfer property in satisfaction of his child support obligation.1 Indeed, even the

mutual consent of the spouses would appear insucient to confer jurisdiction on the courts to

order a transfer of property in the exercise of jurisdiction under section 12 of the Guidelines,

although an out-of-court-settlement could be negotiated by the spouses or an order to pay

might be enforced by way of execution against the land or other assets of the obligor.

In Giao v McCready,2 a father on social assistance was ordered to pay nominal child

support of $1 per month and directed to keep the mother and the Director of Maintenance

Enforcement informed of any income changes as soon as they occurred. e father was also

required to provide his income tax returns and notices of assessment on an annual basis to

the mother and the Director of Maintenance Enforcement.

 See McConnell v McConnell (),  NBR (d)  (CA).

 [] NSJ No  (SC).

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Form and Types of Order 447

B. INTERIM ORDERS

A court may grant an interim order for child support pending the determination of an appli-

cation for a permanent order.3 Interim and permanent orders fall subject to the same criteria

in that both types of order must ordinarily be made in accordance with the applicable guide-

lines.4 An interim order, like a permanent order, may be made for a denite5 or indenite

period or until a specied event occurs and the court may impose such terms, conditions , or

restrictions in connection with the interim order as it thinks t and just.6

An interim order for child support may be unnecessary where the parents continue to

reside under the same roof.7

Interim proceedings are not geared for the nal determination of issues. e evidence is

entirely by adavit and the court lacks the benet of seeing the parties and their witnesses

testify in open court and having their evidence tested under cross-examination. Interim

proceedings are summary in nature and provide a rough justice at best. e merits of the

case are not thrashed out in interim proceedings.8 Interim relief is not generally available

to resolve contested issues. A trial or pre-trial allows for a more thorough and judicious

resolution of the issues. Generally, most issues should not be resolved in chambers upon

conicting adavit evidence.9

1) Types of Interim Order

Section 11 of the Federal Child Support Guidelines expressly empowers the court to order

interim support by way of such lump sum and/or periodic sums as the court deems rea-

sonable. On an application for interim child support and for the proportionate sharing of

extraordinary expenses relating to extracurricular activities, a lump sum may be granted

respecting actual expenses being incurred, pending resolution of diverse issues at trial.10

Section 12 of the Federal Child Support Guidelines expressly confers jurisdiction on the court

to make orders to pay or secure, or to pay and secure, interim support.

2) Effect of Reconciliation on Interim Order

If an interim support order is terminated by an unsuccessful spousal reconciliation, a new

order can be obtained simply by bringing back the original motion and ling a supplement-

ary adavit to establish the new facts.11

 Divorce Act, RSC  (d Supp), c , s .().

 Ibid, s .(). Compare to Miller v White,  PECA  (interim order).

 Gordinier-Regan v Regan,  NSSC .

 Divorce Act, RSC  (d Supp), c , s .().

 Moore v Fernandes, [] OJ No  (SCJ); compare VLN v SRN,  ABQB .

 Sochowski v Sochowski,  ABCA  at para ; Gibb v Gibb, [] B CJ No  (SC); ZAS v TS,

 BCSC ; McConkey v McConkey,  ONSC ; Miller v White,  PECA  (interim

order); CTG v RRG,  SKQB .

 Lafrentz v Palmer,  BCSC ; Jacobson v Jacobson,  SKQB ; Poultney v Poultney,  SKQB

. See also Long v Sun,  BCSC .

 Fuzi v Fuzi, [] BCJ No  (SC).

 Grail v Grail (),  RFL (d)  (Ont Master), a ’d (),  RFL (d)  (Ont Ct Gen Div).

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448   ,  

3) Effect of Divorce on Interim Order

An interim order for support may be granted pursuant to the Divorce Act once a petition for

divorce has been led.12 An interim order is not automatically terminated by the pronounce-

ment of a divorce. Section 15.1(2) of the Divorce Act permits an interim order to continue

until a permanent order is granted.13 An interim order may post-date a divorce judgment and

may be the result of undertakings made by a party at the divorce hearing.14

4) Relationship Between Federal Divorce Legislation and Provincial/

Territorial Legislation

e institution of divorce proceedings in one province does not stop the applicant from

seeking interim child support in another province under provincial legislation.15 Where a

support order under provincial legislation is outstanding, a subse quent order for interim

relief in a divorce proceeding may supplement16 or incorporate17 the former order where the

means and needs of the respective spouses warrant . An order for support made pursuant

to provincial legislation, even if intended to be nal, does not bar a subsequent application

for interim support by way of corollary relief in divorce proceedings.18 Any such application

deals with the matter de novo and does not require proof of a change of circumstances.19

However, an application in a divorce proceeding for interim support in the same amount

as that awarded under provincial legislation has been dismissed on a preliminary obj ection

because it is improper to embark on an identical application as one already determined.20

5) Relevance of Ultimate Entitlement; Definition of “Child of the Marriage”

A court cannot undertake an intensive investigation of the facts on a motion for interim child

support. Where the court is satised on the available material that there is a likelihood that

permanent support will be ordered, an interim child support order is appropriate.21

Where an issue is raised on an application for interim child support as to whether the

respondent stood in the place of a parent to the child, the court must be satised that a

prima facie case has been established before granting an order.22 To establish a prima facie

 Mitchell v Mitchell (),  NSR (d)  (TD); Sauve v Wat son,  ONSC ; compare Zemliak

v Zemliak (),  RFL (d)  (Man CA).

 Boznick v Boznick (),  RFL (d)  (BCSC).

 Wedgwood v Wedgwood (),  Nd & PEIR  (Nd UFC).

 Purse v Purse (),  Man R (d)  (QB).

 Gobeille v Savard, [] CA  (Que CA).

 Asselstine v Asselstine, unreported,  February  (Ont CA).

 Jochimski v Jochimski (),  BCLR (d)  (SC); Goodfellow v Goodfellow (),  OR (d)  (HCJ).

 B(R) v B(M) (),  RFL (d)  (Ont HCJ).

 Mudrinic v Mudrinic (),  RFL (d)  at  (Ont HCJ).

 Richardson v Richardson, [] OJ No  (SCJ).

 TIM v TLM, [] BCJ No  (SC); B ell v Bell, [] OJ No  (SCJ); Wojcichowsky v Wojcichowsky,

 SKQB .

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