Interim Support Orders Do Not Bind Trial Judges

In Ford v Ford, the Court of Appeal for Saskatchewan considered an appeal by the father of the trial judgment concerning various issues relating to the break-up of his marriage, including the parenting regime, family property division, and spousal and child support. In its decision, the Court of Appeal set out the standard necessary at trial when reviewing interim orders of child and spousal support. The Court determined that when a party is arguing against the interim order, they do not have to demonstrate a material change, because the trial judgment is supposed to be based on the full body of evidence, not a review of the interim order.

In this case, the parties separated after nine years and the father had been ordered to pay both interim child support for his three children of $3,187.00 per month as well as interim spousal support for the mother of $3,412.00 per month, for a total of $6,599.00 per month, based on the finding that his income was $189,000.00 per year. The father did pay this monthly amount for a time, but by the time of the trial he was in arrears of over $125,000.00. At the trial, the trial judge found that the father's income used to calculate the support under the interim order was incorrect. In effect, this meant that the interim order was requiring him to pay more support based on his erroneously-high income. Nevertheless, despite this finding the trial judge did not reduce the arrears downward to reflect the findings of fact related to the father's actual income of $150,000.00 per year.

Typically, in order to vary the amount of support in an order, the party seeking the variation must prove that there was a material change in circumstances which would justify altering the amount. In this case, the Court of Appeal held that the trial judge erred in law when he concluded that he had to find a material change in circumstances to justify variation of an amount set out in an interim order. The Court of Appeal found that the trial judge should have conducted a fresh analysis as to the appropriate amount of support. After all, interim orders are only intended to cover a short period of time between the making of the order and the trial and are more susceptible to error than trial judgments. The much fuller set of facts provided to the trial judge, together with the very purpose of interim orders, requires that the trial judge consider all of the factors in coming to a judgment, without being restricted by a prior interim order. Therefore, it was not necessary for the father to prove that the interim order should be varied. Instead, the question that the trial judge should have answered is whether the arrears that accrued under the interim order for child and spousal support should have been adjusted retroactively.

At appeal, the Court delivers an oral judgment concerning the father's appeal of the trial judge's judgment on the parenting regime and the family property division. The Court upheld the trial judge's decision in these areas. However, on the question of the support arrears, the Court granted the father's appeal and, as a result, adjusted the outstanding arrears accordingly. This had the effect of cancelling $56,325.00 of the arrears. The Court also set the father's ongoing child support at $2,584.00 per month and $1,762.00 per month.

This case makes clear that under the Divorce Act an interim support order is not binding upon a final order but is only effective until a final order is granted. As well, it shows that an amount payable under an interim order may be adjusted retroactively if there is an erroneous finding about the payor's income.

Ford v Ford, 2015 SKCA 23