A family dispute can take a long time to get to trial. Before that happens, the court may make interim or temporary orders addressing issues such as support payments or parenting arrangements. Interim orders are treated differently from final court orders. Although they may be made with imperfect information, sometimes they are intended to stay in place until a final decision is made at trial. While a party may seek to vary the terms of a temporary order, courts may discourage any variation unless there is a material change in circumstances warranting a variation.
In the case of Ceho v. Ceho, Justice Price explained that multiple decisions on issues such as parenting arrangements and decision-making responsibilities can end up being made at different points in a judicial proceeding. As the ultimate trial of a case often ends up taking place years after the parties deliver their pleadings, there will often be temporary orders made at conferences or motions before a final judgment is reached. Justice Price noted that these can reduce conflict and bring temporary stability pending a final resolution. However, some temporary orders are made at early court appearances, even before the final hearing of a motion and “are the least informed decisions, often based on a single party’s affidavits or on both parties’ conflicting and un-tested affidavits.” Consequently, these orders might only be expected to govern the parties until the motion is heard and an interim order is made.
The Court also noted that sometimes these will be a “with prejudice” order, signifying that a court at a later hearing “will give some importance to the order in its decision-making.” In contrast, if a decision results from the parties’ negotiation as a temporary and expedient resolution that will usually be superseded, it may be stated to be a “without prejudice” order.
In Ceho v. Ceho, the issue was whether the Court had jurisdiction to vary an interim order and whether the party requesting the variation was required to prove a material change in circumstances had occurred since the order was made. In this case, the parties’ children were temporarily placed with the respondent father due to the mother’s drug addiction and post-traumatic stress disorder. Subsequently, the Office of the Children’s Lawyer recommended the children be returned to their mother, and the mother argued that the Court could vary an interim decision-making order given that there had been material changes warranting the change. Alternatively, the father argued that the issue should be decided at the trial, where there would be a full opportunity to cross-examine the parties, and that there were no exceptional circumstances requiring a change to the status quo.
Justice Price found that the order was not intended to last until the parties’ trial but only until they reached an agreement, or the Court, with the assistance of a fuller evidentiary record, made another order after hearing the parties’ motions. Section 29 of the Children’s Law Reform Act requires that a material change in circumstances affecting the best interests of the child must have occurred before a court makes an order that varies a parenting order or contact order. Additionally, Rule 2 of the Family Law Rules states that the rules are to enable the court to deal with cases justly, save expense and time, and resolve disputes early.
Justice Price determined that requiring a party to “establish that a “material change of circumstances” has occurred since a “temporary temporary and without prejudice order” was made” would not be consistent with the key objective set out in Rule 2. Instead, it would discourage the temporary settling of disputes and “parties would be more likely to argue the issues prematurely in order to avoid a presumption arising from the status quo in the future.” Ultimately, the use of the “without prejudice” expression is intended to “preserve the position of each party.” As the Court pointed out, it would be meaningless if it prejudiced a party by imposing “a higher threshold of proof in the future and requiring him or her to prove a material change of circumstances.” Consequently, section 29 applied to orders that disposed of motions or applications, involving either:
In these instances, it would make sense for the party to demonstrate a material change had occurred. However, in cases where there was a temporary without prejudice order preserving the parties’ positions, requiring a party to establish a material change would be inconsistent.
In Lacroix v. Meek, the respondent mother sought a temporary order for spousal support. The applicant father opposed the order and argued that the respondent was trying to vary an existing order without showing a material change in circumstances. The respondent’s position was that she should not have to establish that there was a material change in circumstances, as the existing order should be viewed as a first interim order because it was “without prejudice.”
The judge looked to Oxley v. Oxley, where the court explained that temporary orders “are not intended to be long-term solutions” and are “imperfect solutions” based on limited information providing a reasonable solution until trial. Additionally, the case emphasized that “variations of temporary orders are not encouraged,” as courts had indicated that there is a heavy onus on a party seeking a variation.
In Lacroix v. Meek, Justice Henderson acknowledged that not all temporary orders are designed to resolve an issue until trial, as solutions can be put in place to get the parties to the next step. The applicant cited the decision in Stolp v. Stolp in support of his argument, noting that an existing order was on an interim without prejudice basis. However, the judge found that the phrase “without prejudice” did not lower the threshold for a party seeking a variation, and instead, it only meant that a trial judge could determine the issue differently with a more developed evidentiary record.
Justice Henderson did not view the decisions in Stolp v. Stolp and Ceho v. Ceho as contradictory. The principle from Stolp v. Stolp was that it is necessary to determine the true nature and intent of a temporary order, which required considering the wording and factual context of the order. And “depending on that interpretation, the material change test may or may not need to be applied.”
In this case, the question was whether the order was intended to last until trial or just to a later point when spousal support could be reviewed. Justice Henderson found it was a first temporary order without prejudice pending further financial information as the parties had not exchanged disclosure, and motions were contemplated.
Courts have traditionally held that motions for temporary orders should not be encouraged. However, they do recognize that their power to vary a temporary order is essential to ensure there is fairness between the parties. In Nour v. Youssef, the court found the test for a variation of a temporary order requires:
Nevertheless, in Kirichenko v. Kirichenko, Justice Charney reiterated that there may be exceptions to the material change in circumstances requirement. This includes instances where the parties agreed that a temporary order should be made on a “without prejudice” basis, consistent with the decision in Ceho v. Ceho.
Ultimately, a party seeking to vary a temporary order may have to demonstrate there has been a material change in circumstances. However, courts do have the power to vary temporary orders to ensure fairness, especially when better information and evidence becomes available.
The trusted family lawyers at NULaw in Toronto understand the unique challenges our clients face when going through a separation and divorce proceedings. We also understand the complexities and issues that can arise while proceeding through litigation and the need for interim orders to provide temporary resolutions. Throughout the dispute resolution and litigation process, we protect the interests and assets of our clients. To schedule a confidential consultation with one of our family lawyers, contact us online or call us at 416-481-5604.