H. Interim Variation of Permanent Orders

Author:Julien D. Payne - Marilyn A. Payne
Pages:488-490
 
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Page 488

Although interim orders are specifically authorized by sections 15.1(2), 15.2(2) and 16(2) of the Divorce Act, no jurisdiction to grant interim orders is explicitly conferred by section 17 of the Divorce Act, which empowers a court to make an order varying, rescinding or suspending, prospectively or retroactively, a final spousal support order, child support order, or custody order. In British Columbia and Saskatchewan, appellate courts have addressed the issue of whether interim variation orders could be granted under section 11 of the Divorce Act, S.C. 1967-68, c. 24 (R.S.C. 1970, c. D-4), the predecessor to section 17 of the Divorce Act, R.S.C. 1985 (2d Supp.), c. 3. While acknowledging that there was no jurisdiction to grant interim orders on an application under section 11(2) of the Divorce Act, 1968, where variation was sought in respect to an existing order for corollary financial relief, the judgments of Burton v. Burton24and Frey v. Frey25state that an order could be varied pursuant to section 11(2) of the Divorce Act, 1968, and then varied again, if injustices might otherwise arise from delay prior to a full review of the attendant circumstances. On the other hand, in Yeo v. Yeo,26the Prince Edward Island Court of Appeal concluded that injustices and hardships that can arise from delay in the full hearing of an application to vary an order under section 17(1) of the Divorce Act cannot be addressed by successive orders, the first of which is merely transitional pending a full review of the attendant circumstances. Instead, injustices and hardships must be addressed by expedited hearings and/or by orders for retroactive variation, the latter jurisdiction being expressly recognized by section 17(1) of the current Divorce Act but not by section 11(2) of the Divorce Act, 1968. The reasoning in Yeo v. Yeo seems more compelling than the reasoning in Frey v. Frey. However, the cases have two common features. First, both acknowledge that the relevant statutory provisions confer no jurisdiction on a court to grant an interim order varying an existing final order. Second, both acknowledge the need for the avoidance of injustices or hardships that might arise from delay. Where they differ is in the means whereby such avoidance is secured. In Walsh v. Walsh,27the Ontario Court of Appeal concluded that in the absence of a finding of a change of circumstances within the meaning of section 17(4) of the Divorce Act and section 14 of the...

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