Form and types of order
| Author | Julien D. Payne; Marilyn A. Payne |
| Pages | 413-467 |
413
CHAPTER 11
FORM AND TYPES OF ORDER
A. DIVERSE TYPES OF ORDER
e diverse types of support order that may be granted pu rsuant to sections and of the
Guidelines a re as follows:
) An order to pay a lump sum;
) An order to secure a lump sum;
) An order to pay and secure a lump sum;
) An order to pay periodic sums;
) An order to secure periodic sums;
) An order to pay and secure periodic sums.
e court is not restricted to mak ing only one type of order. A combination of the vari-
ous types of order may be accommodated.
When child support is gra nted, it is usually ordered to be paid on a periodic basis — weekly,
fortnightly, or monthly. A court has no jurisdiction under sec tion of the Guidelines to order
an obligor to transfer property in s atisfaction of his child support obligation. Indeed, e ven the
mutual consent of the spouses would appear insu fficient to confer jurisd iction on the courts
to order a transfer of property in the exercise of juri sdiction under section 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 la nd or other ass ets of the obligor.
In Giao v McCready, a father on social a ssistance was ordered to pay nominal ch ild
support of per month and directed to keep the mother and the Director of Mai ntenance
Enforcement informed of any income changes as soon as they occur red. e father was also
required to provide his income tax ret urns and notices of assessment on an annual basis to
the mother and the Director of Maintenance En forcement.
See McConnell v McCo nnell (), N BR (d) (CA).
[] NSJ No (SC).
414 CHILD SUPPORT GUIDELINES IN CANADA, 2020
B. INTERIM ORDERS
A court may grant an interi m order for child support pending the determination of an
application for a perm anent order. Interim and permanent orders fall subject to t he same
criteria in that both ty pes of order must ordina rily be made in accordance with the applic-
able guideli nes. An interim order, like a permanent order, may be made for a definite or
indefinite period or until a speci fied event occurs and the court may impose such term s,
conditions, or restrictions in connect ion with the interim order as it thinks fit and just.
An interim order for child support is unneces sary where the parents continue to reside
under the sa me roof.
Interim proceedings are not geared for the fina l determination of issues. e evidence
is entirely by affidavit and the court lacks t he benefit of seeing the parties and thei r wit-
nesses testif y in open court and having t heir evidence tested under cross-exami nation.
Interim proceedings are su mmary in nature and provide a rough justice at best. e merits
of the case are not thrashed out in i nterim proceedings. Interim relief is not generally avail-
able to resolve contested issues. A trial or pre-trial al lows for a more thorough a nd judicious
resolution of the issues. Generally, most issues should not be resolved in chambers upon
conflicti ng affidavit evidence.
1) Types of Interim Order
Section of the Federal Child Support Guidelines ex pressly 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
extraordinar y expenses relating to extr acurricular act ivities, a lump sum may be gra nted
respecting actua l expenses being incur red, pending resolution of diverse issues at trial.
Section of the Federal Child Support Guidelines e xpressly confers jurisd iction 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 termin ated by an unsuccessful spou sal reconciliation, a new
order can be obtained simply by bringing back t he orig inal motion and filing a supplement-
ary affidavit to establ ish the new facts.
Divorce Act, RSC (d Supp), c , s .().
Ibid, s .(). Compa re to Miller v White, PECA (interim order).
Gordinier-Regan v Regan, NSS C .
Divorce Act, RSC (d Supp), c , s .().
Moore v Fernand es, [] OJ No (SCJ).
Gibb v Gibb, [] BCJ No (SC); Miller v White, PECA (interim order); CTG v RRG,
SKQB .
Jacobson v Jacob son, SKQB ; Poultney v Poultney, SKQB .
Fuzi v Fuzi, [] BCJ No (SC).
Grail v Grail (), RFL (d) (Ont Master), aff’d (), RFL (d) (Ont Ct Gen Div).
Form and Types of Order 415
3) Effect of Divorce on Interim Order
An interim order for support may be granted pursuant to the Divorce Act once a petit ion
for divorce has been filed. An interim order is not automatically terminated by the pro-
nouncement of a divorce. Section .() of the Divorce Act permits an interim order to
continue until a permanent order is granted. An i nterim order may post-date a divorce
judgment and may be the result of undertaking s made by a par ty at the divorce hearing.
4) Relationship Between Federal Divorce Legislation and Provincial/Territorial
Legislation
e institution of divorce proceedings in one province does not stop the applica nt from
seeking interim chi ld support in another province under provincial legi slation. Where a
support order under provincial legislation is outstandi ng, a subsequent order for interim
relief in a di vorce proceeding may supplement or i ncorporate the former order where the
means and needs of the respect ive spouses warrant. An order for support made pursuant
to provincial legislation, even if intended to be fina l, does not bar a subsequent application
for interim suppor t by way of corollary re lief in divorce proceed ings. Any such application
deals with the matter de novo a nd does not require proof of a change of circumstances.
However, an application in a divorce proceeding for interim support in the same amount
as that awarded under provincial legisl ation has been dismissed on a preliminar y objection
because it is improper to embark on an identical application as one already determi ned.
5) Relevance of Ultimate Entitlement; Definition of “Child of the Marriage”
A court cannot underta ke an intensive investigation of the facts on a motion for interim
child support. Where the court i s satisfied on the available material that there is a li kelihood
that permanent support will be ordered, an interi m child support order is appropriate.
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 satisfied that a
prima facie case has been e stablished before granting an order. To establish a prima fa cie
case, there must be evidence before the court as to the nat ure and quality of the respondent’s
relationship w ith the children.
Mitchell v Mitchell (), NSR (d) (TD); compare Zemliak v Zemliak (), RFL (d)
(Man CA).
Boznick v Boznick (), RF L (d) (BCSC).
Wedg wood v Wedg wood (), Nfld & PEIR (Nfld U FC).
Purse v Purse (), Man R (d) (QB).
Gobeille v Savard, [] CA (Que CA).
Asselstine v Asselstine, u nreported, Februar y (Ont CA).
Jochimski v Jochi mski (), BCLR (d) (SC); Goodfellow v Goo dfellow (), OR (d) (HCJ).
B(R) v B(M) (), RFL (d) (Ont HCJ).
Mudrinic v Mudrinic (), RFL (d) at (Ont HCJ).
Richardson v Ri chardson, [] OJ No (SCJ).
TIM v TLM, [] BCJ No (SC); Bell v Bell, [] OJ No (SCJ); Wojcichowsky v Wojcichowsky,
SKQB .
Sankey v Aydt, [] SJ No (QB).
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