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 assistance was ordered to pay nominal child

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).

414CHILD SUPPORT GUIDELINES IN CANADA, 2020

B. INTERIM ORDERS

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

application for a permanent order. Interim and permanent orders fall subject to the same

criteria in that both ty pes of order must ordinarily be made in accordance with the applic-

able guidelines. An interim order, like a permanent order, may be made for a def‌inite or

indef‌inite period or until a specif‌ied event occurs and the court may impose such terms,

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 the benef‌it of seeing the parties and their wit-

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

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 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.

Section  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 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 petition

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 interim 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 applicant from

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

support order under provincial legislation is outstanding, 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 respective 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 and 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 undertake 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).