F. Interim Orders

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 578-579

578 CHILD SU PPORT GUIDELINES IN CA NADA, 2012

trial judge’s f‌indings of fact where those f‌indings are suf‌f‌iciently palpable and important

and have a suf‌f‌iciently decisive ef‌fect that they war rant appellate intervention and review.30

It is not suf‌f‌icient, however, to identify errors in the details of the f‌indings of fact made by

the judge of f‌irst instance, if the overal l characterization of the ef‌fect of the facts is correct

in law.31 Insofar a s the Federal Child Support Guidelines are mandatory and not permissive,

an appellate court is requi red to intervene where the trial judge made an error of law in not

addressing the issues according to the Guidelines.32 e exercise of discretion by a Master

on a question of fact should not be disturbed on appeal unless it was “clearly wrong,” but a

judge sitting on appeal on a point of law from a Master has a conventional appellate juris-

diction in which the legal is sue may be argued and decided on the merits.33

While disapproving the procedure, an appellate court may f‌ind no reversible error in

the trial judge’s decision not to allow evidence on all issues in d ispute.34

An appeal may be allowed in par t where the evidence before the trial court was insuf-

f‌iciently clear with respect to expens es sought pursuant to section 7 of the Guidelines.35

Where the passage of time has been too great or the appellant seeks to demonstrate a

change of circumsta nces subsequent to the making of the order, variation proceedings may

be a more appropriate avenue of recourse than the appellate cour t.36 An appellate court may

take into account a change of circumsta nces since the making of an order where a failure to

consider the change would lead the appellate court to make an order which would inevita-

bly be varie d on a fresh application.37

e launching of an appeal does not preclude an application to vary a subsisting order

on the basis of a change that has occu rred since the granting of the order.38

F. INTERIM ORDERS

An appellate court will only interfere with an interim order for child support, if wrong

principles of law have been applied or the order under appeal results in a patent injustice.39

An appeal from a Master’s order in a purely interlocutory matter should not be entertained

unless the order was clearly wrong.40

30 Blyth v. Brooks, [2008] A.J. No. 100 (C.A.); Hawco v. Myers, [2005] N.J. No. 378 (C.A.).

31 Marinangeli v. Marinangeli, [2003] O.J. No. 2819 (C.A.) (trial judge’s misapprehension of cert ain facts

found insuf‌f‌icient to w arrant appellate inter vention).

32 Zuk v. Zuk, [1998] A.J. No. 1425 (C.A.).

33 Maynard v. Maynard, [1999] B.C.J. No. 325 (S.C.).

34 Ryba v. Schoenroth, [1999] S.J. No. 201 (C.A.).

35 Wesolowski v. Wesolowski, [1999] A.J. No. 183 (C.A.).

36 Nash v. Nash, [1975] 2 S.C.R. 507; Berry v. Murray (1983), 30 R.F.L. (2d) 310 (B.C.C.A.); Milinkovic v. Mil-

inkovic (1991), 37 R.F.L. (3d) 97 (Ont. C.A.); ompson v. ompson (1988), 11 R.F.L. (3d) 422 (Sask. C.A.);

Gresham v. Gresham (1988), 14 R.F.L. (3d) 446 (Sask. C.A .). See also Grohmann v. Grohmann (1991), 37

R.F.L. (3d) 71 (B.C.C.A.), wherein S outhin J.A. observed t hat “the [appellate] court, general ly, should only

exercise origi nal jurisdiction where it h as been shown that the judgment below wa s erroneous. If that

is not shown, then it does se em to me that subsequent events are for a fresh a pplication below.” And see

McLaughlin v. McLaug hlin, [1999] B.C.J. No. 485 (C.A.).

37 LeBlanc v. LeBlanc (1993), 48 R.F.L. (3d) 457 (Man. C.A.).

38 Re Seaman (1977), 28 R.F.L. 275 (Ont. H.C.J.).

39 Klain v. Klain, [1997] N.S.J. No. 20 (C.A.); compare Dram v. Fos ter, 2009 MBCA 125.

40 Von Sturmer v. Von Sturmer, [1998] B.C.J. No. 1646 (S.C.); ibeault v. Ravelo, [1999] B.C.J. No. 1457 (S.C.);

Michal v. Michal, [2000] B.C.J. No. 1839 (S.C.).