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  • Writer's pictureJared Davies, Lawyer

High income, motion for summary judgement and material change pursuant to L v L, 2023 ONSC 4220

Background


This case centres around retroactive child support. The parties made a separation agreement in 2021 of which terms relating to child support were turned into a Final Order. Child support was to be paid based off the payor’s actual income. There was also a mechanism to adjust child support according to any change in income. However, later, the payor sought to vary the Final Order retroactively, claiming a material change in circumstances due to an almost 50% increase in his income. The Respondent, on the other hand, sought enforcement of the existing Final Order. While there was also an issue related to the payor’s income and business deductions, that is not covered in this post.


The sole outstanding issue is the balance of child support payable for the months of November 2020 through to December 2022. The payor argues that he should owe retroactive child support of $103,196.00 based on his requested variation of the Final Order and an income cap over the few years in question. The recipient argues that the payor is in child support arrears of $227,821.00 under the assumption that there is no need to vary the Final Order and that child support should be based on the payor’s actual income.


Issues


1. Is this an appropriate case for summary judgement?


2. Has there been a material change in circumstances sufficient to justify variation of child support?


Analysis


1. Is this an appropriate case for summary judgement?


In this case, the court found summary judgment was appropriate as there was no genuine issue requiring a trial. The undisputed facts and documentary evidence allowed for a fair and just determination of the case without the need for a trial.


A motion for summary judgement can be found in Rule 16 of the Family Law Rules. The purpose of a summary judgement is to decide all or parts of the case without the need of having to go to trial. In practice, this will save time and money for the parties involved. Thus, the court can only grant a motion for summary judgement if there is “no genuine issue requiring a trial.” In the case, the court notes that:


[8] For there to be no genuine issue requiring a trial, the motion judge must be able to reach a fair and just determination on the merits; i.e., the motion process: 1) allows the judge to make the necessary findings of fact; 2) allows the judge to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result (see: Hryniak v Mauldin, 2014 SCC 7, at para. 49). These principles are interconnected (see: Hryniak, at para. 50).


In the current case, a summary judgement was appropriate for the above reasons. The parties were in agreement with all of the facts in the case. In other words, there was nothing to argue over but the law. All the applicable evidence was in the form of document. And finally, the motion for summary judgement would be timelier. The summary judgement was granted.


2. Has there been a material change in circumstances sufficient to justify variation of child support?


The payor claimed a material change in circumstances due to an increase in his income. The payor’s case was as follows:


[12] The applicant argues that there has been a material change in circumstances since the making of the Final Order; specifically, that his income has increased by almost 50%. Therefore, he submits, payment of the table amount based on his actual income would be inappropriate and the Final Order should be varied so that his income for child support purposes is capped at $2,100,000.00. The applicant argues that, without this cap, the amount of child support payable would exceed the children’s actual needs and would constitute improper “wealth transfer” from him to the respondent.


The payor's income was approaching almost $2,600,000.00 in 2022. However, the court found that there had been no material change in circumstance since the payor’s change in income, if known at the time of the Final Order, would likely not have changed the order. Further, the Final Order contained a mechanism for adjusting child support based on changes in income.


As implied, to change a final order with respect to child support, there must be a material change in circumstances. The test is set out in the case:


[15] On a motion to change under s. 17, the threshold question is whether there has been a material change in circumstances since the making of the order sought to be varied, without which there is no power to vary (see: Assayag-Shneer v Shneer, 2023 ONCA 14, at para. 6).


[16] Any party seeking such a variation must demonstrate a past change in circumstances as set out in s. 14 of the Federal Child Support Guidelines or one that, “if known at the time, would probably have resulted in different terms” (see: Colucci, at paras. 59-61). To meet the applicable threshold, a change in income must be “significant and have some degree of continuity, and it must be real and not one of choice” (see: Colucci, at para. 61).


As mentioned, the court said that there was no material change in circumstances in this case because the income fluctuations were contemplated by the Final Order as there was a mechanism to adjust child support accordingly. The court found that the payor’s new income, if known at the time the Final Order was made, would not have resulted in a different child support order. The court found: there has therefore been no applicable material change in circumstances and, as such, I have no authority to vary the Final Order as requested by the applicant….


Conclusion


A motion for summary judgement is a beacon of efficiency and expediency in the realm of legal proceedings, rendering a resolution without the need for a protracted trial. However, the case at hand has also underscored the importance of the concept of a "material change" in family law matters involving variation of a Final Order for child support. A "material change" must be one that, if known at the time of the initial order, would likely have resulted in a different outcome. Each case will depend on its own unique facts.

Kommentare


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