Form and types of order
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 411-463 |
FORM AND TYPES OF ORDER
A. DIVERSE TYPES OF ORDER
e diverse types of support order that may be gra nted pursuant 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 jurisdict ion under section of the Guide-
lines to order an obligor to transfer property i n satisfaction of his child support obligation.
Indeed, even the mutual consent of the spouses would appear in sufficient to confer juris-
diction on the courts to order a tran sfer of property in the exercise of jurisdict ion under
section of the Guidelines, alt hough 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 assets of the obligor.
In Giao v. McCready, a father on social assista nce 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. McConne ll (), N.B.R. (d) (C.A.).
[] N.S.J. No. (S.C.).
CHILD SU PPORT GUIDELINES IN CA NADA,
B. INTERIM ORDERS
A court may grant an interi m order for child support pending the determination of an ap-
plication for a perm anent order. Interim and permanent orders fall subject to the same cri-
teria in that both ty pes of order must be made in accordance with the applicable guidelines.
An interim order, like a permanent order, may be made for a definite or indefinite period or
until a specified event occurs a nd the court may impose such terms, conditions, or restric-
tions in connection with t he interim order as it thinks fit a nd just.
An interim order for child support is unnecess ary 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 their w it-
nesses testif y in open court and having their ev idence tested under cross-examination. In-
terim 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 general ly avail-
able to resolve contested issues. A trial or pre-trial al lows for a more thorough and judicious
resolution of the issues. Generally, most issues should not be resolved in chambers upon
conflicti ng affidavit evidence.
) 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 extracurricular activit ies, a lump sum may be granted
respecting actua l expenses being incurred, pendi ng resolution of diverse issues at trial.
Section of the Federal Child Support Guidelines e xpressly confers ju risdict ion on the
court to make orders to pay or secure, or to pay and secure interim support .
) Effect of Reconciliation on Interim Order
If an interim support order is termin ated by an unsuccessful spousa l reconciliation, a new
order can be obtained simply by bringing back t he original motion and filing a supplement-
ary affidavit to establ ish the new facts.
Divorce Act, R.S.C. (d Supp.), c. , s. .().
Ibid., s. .().
Gordinier-Regan v. Regan, NSSC .
Divorce Act, R.S.C. (d Supp.), c. , s. .().
Moore v. Fernan des, [] O.J. No. (S.C.J.).
Gibb v. Gibb, [] B.C.J. No. (S.C.).
Jacobson v. Jaco bson, SKQB ; Poultney v. Poultney, SKQB .
Fuzi v. Fuzi, [] B.C.J. No. (S.C.).
Grail v. Grail (), R.F.L. (d) (Ont. Master), aff’d (), R.F.L. (d) (Ont. Ct. Gen. Div.).
Form and Types of Order
) 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 termi nated 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 postdate a divorce
judgment and may be the result of undertaking s made by a party at the divorce heari ng.
) Relationship between Federal Divorce Legislation and
Provincial/Territoria l Legi slation
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 legislation. W here 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 rel ief in divorce proceedi ngs. 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.
) 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 likeli hood
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 sati sfied that
a pr ima facie case has been established before granting an order. To establish a prima
facie case, there must be evidence before the court as to t he nature and quality of the re-
spondent’s relationship w ith the children.
Mitchell v. Mitchell (), N.S.R. (d) (T.D.); compare Zemliak v. Zemliak (), R.F.L. (d)
(Man. C.A.).
Boznick v. Boznick (), R.F.L. (d) (B.C.S.C.).
Wedg wood v. Wedg wood (), Nfld. & P.E.I.R. (Nfld. U.F.C.).
Purse v. Purse (), Man. R. (d) (Q.B.).
Gobeille v. Savard, [] C.A. (Que. C.A.).
Asselstine v. Asselstine, un reported, February , (Ont. C. A.).
Jochimski v. Jochims ki (), B.C.L.R. (d) (S.C.); Goodfellow v. Goodfellow (), O.R. (d)
(H.C.J.).
B.(R.) v. B.(M.) (), R.F.L. (d) (Ont. H.C.J.).
Mudrinic v. Mudrinic (), R.F.L. (d) at (Ont. H.C.J.).
Ric hardson v. Richardson, [] O.J. No. (S.C.J.).
T.I. M. v. T. L.M ., [] B.C.J. No. (S.C.); Bell v. Bell, [] O.J. No. (S.C.J.); Wojcichowsky v.
Wojcichowsky, SKQB .
Sankey v. Aydt, [] S.J. No. (Q.B.).
To continue reading
Request your trial