Gary Joseph | Sep 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

It's time to revisit the now ingrained principles applied in determining interim support. They are intended to provide a reasonable and acceptable solution to a difficult problem pending trial. Our courts talk about applying rough justice on such motions. Now let's talk reality.

Our courts are hopelessly overburdened and underfunded. Trial dates in many jurisdictions are years away. Orders made by applying “rough justice” may be harmful to either or both of the parties (and ultimately the justice system). Payor spouses overburdened with support ordered   beyond their means fall into default. The application of Rule 1(8) sanctions can be devastating and may lead ultimately to having one's pleadings struck. The result for the recipient spouse can be equally harmful. Rough justice may result in extreme financial hardship to a spouse “underfunded” by a support order that may last to trial. Financial resources may not exist to maintain a spouse and children. This can be especially harsh if a trial is delayed by under-resourced courts.

I need not add to this commentary the great difficulty experienced in trying to vary an interim order. While I can appreciate the need for a very narrow opportunity to vary these orders, it is often difficult to explain to an upset client that such motions are extremely challenging and rarely successful.

Well, what about an appeal? Really?? As you all know, leave to appeal is necessary when seeking to appeal an interim order of the Superior Court of Justice. How many of you, my loyal readers, can Claim success in getting leave to appeal an interim support order? Again, I understand why we cannot have a torrent of appeals flowing from interim orders. However, adequate remedies are simply not presently available for an aggrieved client upset over a rough justice result on an interim support motion. Principles that evolved when reasonable time frames for a getting to trial were available are perhaps outdated as a result of court delays.

We have to find a better way. Many of the principles that have emerged over the years to be applied on interim support motions are again the result of motion judges dealing with too many motions without adequate resources to do the job they are well-trained and positioned to do. I suggest that more time and effort spent crafting interim support orders may indeed relieve some of the impossible burdens on our family courts. Support orders crafted with adequate income information and with adequate time will garner more respect from the involved parties. A foundation will be laid for resolution, there will be less need for Rule 1(8) motions, less default, less default hearings and perhaps even less conflict.

I am by nature fiscally conservative, and I do not believe that throwing money at every problem will fix it but let's face it, justice has been largely at the bottom of the funding barrel for too many years. This must change and we lawyers must be vocal in our efforts to do so. Let's get a unified specialized family court throughout the province with enough judges, law clerks and staff to properly deal with the ever-growing caseload in family law. And please, no disrespect meant, let's forget this concept of rough justice on interim support motions. It's often too rough.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law.

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