We’ve spent a lot of time discussing COVID-19’s impact on family law over the last few months. With the courts only hearing matters deemed urgent, only very specific matters would make it before a judge. While we are seeing courts begin to re-open, they aren’t entirely back to normal, and may not be for quite some time. In a recent decision from the Ontario Superior Court of Justice, we see how the courts assess urgency as it relates to a motion to terminate spousal support.

A material change in circumstances

The parties were subject to a final order in 2013 which saw the husband making monthly spousal support payments of $2,118 to the wife. This was based on recorded income of $21,000 for the wife and $90.167 for the husband.

The husband started a Motion to Change in April, asking that his spousal support obligations be terminated. The wife opposed the motion. The husband’s position was that since retiring, his income has dropped considerably. In the meantime, he said the parties did not comply with an order to exchange financial information each year, and in two of the last four years the wife made considerably more money than he did, though he continued to pay spousal support anyhow. In the meantime, he stated his post-retirement income is only about two-thirds of what it was prior to his retirement.

Is the matter urgent?

The court set out to determine whether the matter was urgent enough to hear. In addition to hearing matters related to the safety or wellbeing of a child, the courts can hear matters related to “dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.”

The test to see whether an issue fits that description was set out in a Notice to the Profession on May 19, 2020, and includes and analysis of the following:

1. The concern must be immediate; that is one that cannot await resolution at a later date;

2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;

3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;

4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

The court said that while it will reserve judgment on the merits of the husband’s request, it does pass the test for being a “pressing” issue and therefore can be subject to an interim order. The court relied on common law to make an interim motion, finding that the husband had a strong prima facie case, a clear case of hardship, urgency, and had come to the court with “clean hands.”

The court ordered all spousal support payments to stop immediately and remain so until the matter can heard by the court.

Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.

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