In Ontario, when parties have obtained a final court order for child support, that order is often enforced by the Family Responsibility Office ("FRO"). When a support payor fails to pay the amount of support being enforced, arrears will accumulate and FRO can take action against the support payor.
The process for changing a final order is a Motion to Change. Like any court proceeding, a Motion to Change can take time to be resolved and a payor may be left wondering if they can pause FRO's enforcement while their Motion to Change is underway.
The Family Responsibility and Support Arrears Enforcement Act ("FRASAEA") is clear that the enforcement of a support order is not affected by a stay of enforcement unless the underlying support order is also stayed. Ultimately, in order for a payor to obtain a full stay of enforcement, they must obtain a stay of enforcement against FRO and a stay of the underlying support order (Alalouf v Sumar, 2023 ONSC 6604).
The Superior Court of Justice has held that an interim variation of the underlying support order is the most drastic intervention a court could make pending a final hearing on a motion to change (Hayes v Hayes, 2010 ONSC 3650).
The test for an interim stay or variation of a final support order was set out in Berta v Berta 2019 ONSC 505 by Justice Kurz. The moving party must prove:
- A strong prima facie case (that there has been a material change in circumstances since the time of the order in question);
- A clear case of hardship;
- Urgency; and
- That the moving party has come to court with clean hands.
To summarize, if a payor seeks to stay the enforcement of arrears of support by FRO, the payor generally must first succeed in obtaining an order for a stay of the underlying support order. To have the underlying support order stayed, the payor must satisfy the Berta test above.
A brief overview of the steps in the Berta test is as follows:
a- Prima facie case
To meet this step of the test, the party will have to satisfy
the threshold test to be applied on a motion to change – that
being, a "material change in circumstances". In Dean v
Dean 2016 ONSC 4298, the Superior Court of Justice held that the
change of circumstances must be material meaning that if it was
known at the time, it likely would have resulted in different
terms. The Child Support Guidelines clarify that where the amount
of child support set out in the existing order includes a
determination made in accordance with the table, any change in
circumstances that would result in a different order for the
support of a child or any provision thereof would constitute a
change in
circumstances that gives rise to the making of a variation order
(Section 14(1)). Moreover, in Corcios v Burgos, the Superior Court
of Justice succinctly held, "the change must be material,
which means significant and long-lasting; real and not one of
choice" (Corcios v Burgos 2011 ONSC 3326).
b- Clear case of hardship
This prong in the test requires the payor to prove that they have a clear case of hardship. In Stoyles v Stoyles 2022 ONSC 6546, Justice Sah adopted the following: "the court must find hardship or alternatively that the continuation of the existing order would be absurd and incongruous. This latter approach has been defined as being "inappropriate, unreasonable, or ridiculous".
In Alalouf v Sumar 2023 ONSC 6604, Justice Kristjanson held that the payor failed to provide full financial disclosure, including failing to provide an updated Form 13 Financial Statement, making it impossible for the court to determine his financial resources and if there was hardship.
It is clear, and not at all surprising, that a payor seeking to stay a final support is not likely to be successful without producing full financial disclosure.
c- Urgency
The issues of urgency and hardship are intertwined. Justice Kurz in Berta v Berta also held that an analysis of urgency is similar to that of hardship as they are "two sides of the same coin". One clear example of a payor who failed to meet this step of the test is the payor in Berta: Justice Kurz held that the chronology of that case was the best evidence of a lack of urgency – there were significant delays through the fault of the payor without explanation.
d- Clean hands
In Ivens v Ivens 2020 ONSC 2194, Justice Kurz held that a person who deliberately refuses to obey a support order will generally not be granted the right to claim an interim variation of that order because that person comes to the court with "unclean hands". The two common examples of "unclean hands" are failing to obey support orders, and failing to provide income and financial disclosure.
If a payor is unable to meet every branch of the test above, they will not be able to stay the final support order or obtain a full stay of enforcement. Recognizing when to seek an interim stay of a final support order during a Motion to Change proceeding, and understanding the elements that must be proven to be successful, can be essential to a support payor.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
