B. Interim Orders

Author:Julien D. Payne - Marilyn A. Payne
Pages:396-408
 
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A court may grant an interim order for child support pending the determination of an application for a permanent order.3Interim and permanent orders fall subject to the same criteria in that both types of order must be made in accordance with the applicable guidelines.4

An interim order, like a permanent order, may be made for a definite5or indefinite period or until a specified event occurs and the court may impose such terms, conditions or restrictions in connection with the interim order as it thinks fit and just.6An interim order for child support is unnecessary where the parents continue to reside under the same roof.7Interim proceedings are not geared for the final determination of issues. The evidence is entirely by affidavit and the court lacks the benefit 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. The merits of the case are not thrashed out in interim proceedings.8Interim 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 conflicting affidavit 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 reasonable. 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 filing a supplementary affidavit to establish the new facts.11

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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.12An interim order is not automatically terminated by the pronouncement of a divorce. Section 15.1(2) of the Divorce Act permits an interim order to continue until a permanent order is granted.13An interim order may postdate 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

The institution of divorce proceedings in one province does not stop the applicant from seeking interim child support in another province under provincial legislation.15Where a support order under provincial legislation is outstanding, a subsequent order for interim relief in a divorce proceeding may supplement16or incorporate17the 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 final, does not bar a subsequent application for interim support by way of corollary relief in divorce proceedings.18Any 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 objection 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 satisfied on the available material that there is a likelihood that permanent support will be ordered, an interim child support order is appropriate.21Where 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 established before granting an order.22To establish a prima facie

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case, there must be evidence before the court as to the nature and quality of the respond-ent’s relationship with the children.23Interim child support may be ordered on the basis of prima facie evidence that one spouse stood in the place of a parent to the other spouse’s child from a prior relationship,24

without prejudice to a trial judge’s right to revisit the issue.25An order should be denied where there is insufficient material before the court to warrant such a finding.26The applicant assumes the onus of establishing a prima facie case that her spouse stood in the place of a parent to the applicant’s child.27A court will not order a step-parent to pay interim child support where the affidavit evidence is contradictory and the court is unable to determine whether or not the step-parent stood in the place of a parent to his wife’s children from her previous marriage. Where there is a genuine triable issue or a prima facie case has not been made, the matter should be resolved by a trial judge who can order retroactive child support if a parent/child relationship is established on the evidence.28On an interim application, an applicant must establish a prima facie case of entitlement and, if there is a significant conflict on the evidence, the matter should be determined at pre-trial or trial.29Faced with conflicting affidavits on an application for interim child support, a chambers judge may conclude that a prima facie case has not been established that the respondent stood in the place of a parent to the child and that it will take a trial to sort the matter out. An appellate court should not disturb that conclusion unless the chambers judge has abused his or her discretion by acting on some wrong principle, by disregarding some material fact, or by failing to act judicially.30

6) Application of Federal Child Support Guidelines

Interim support should cover those needs that will arise from the time of the application until the litigation is completed.31Because the interim process and the volume of motions prevent the kind of decisive and informed findings possible only after a trial, it is the task on an interim motion to consider the situations of the parties as they appear at the time of the interim order and foreseeable future.32Extended delays in trials and supervening material changes accompanying those delays may be dealt with by motions to vary when necessary.33

Thereafter, it remains for the trial judge, in her unfettered discretion, to make or deny a

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permanent order based on the evidence adduced at trial, unless the parties resolve matters earlier by mutual agreement.34Section 15.1(3) of the Divorce Act expressly provides that the court making an order for interim child support under section 15.1(2) of the Divorce Act shall do so in accordance with the applicable provisions of the Federal Child Support Guidelines or their federally designated provincial counterpart.

7) Interim-Interim Orders; Adjournments

If an applicant for interim support can show a prima facie entitlement to child support under the Federal Child Support Guidelines and an adjournment is sought by the respondent to permit cross-examination on the applicant’s affidavit or the filing of documents in opposition to the application and such an adjournment would result in a delay of several weeks or months, it may be reasonable to require the respondent to make some financial provision to the applicant on granting the adjournment. An order to this effect is frequently referred to as an interim-interim order and can be properly characterized as an order for interim support.35In order to determine the applicable table amount of support under the Federal Child Support Guidelines and the right, if any, to special or extraordinary expenses under section 7 of the Guidelines, it is necessary to determine the income of the parties. A court may experience some difficulty in determining the appropriate interim-interim disposition, because of contradictory affidavits that have not been scrutinized by way of cross-examination. Except in rare circumstances, however, the court must grant an interim-interim order to ensure reasonable provision for the children until an interim order can be granted on the return of the motion. In endeavouring to grant an appropriate interim-interim order, the court must make findings based on a reasonable interpretation of the facts as presented by the parties. On a return of the motion after cross-examinations have been conducted, the amounts provided by the original order can be retroactively adjusted.36Interim-interim orders are "band-aid" orders intended to be of short duration until the parties have furnished complete financial...

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