Varying an Order without a material change in circumstance

Traditionally, once an interim Order is made, say for support, it can not be changed until trial or unless there is a material change in circumstance.

The test for material change in circumstance is quite high as it appears case law supports policy that family law matters ought to move towards trial instead of languishing in Court with interim motion after interim motion. The notion is that interim motions should deal with the issue being litigated once until the trial court can hear all the evidence and make a final decision.

The case of Lepine v. Lepine (2007), 2007 CarswellOnt 6644 (S.C.J.) found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii43741/2007canlii43741.html
is a good example of how this notion can work to a party's advantage/disadvantage.

In Lepine, the husband failed to make appropriate financial disclosure pursuant to Rule 13 of the Family Law Rules, and the Court reinforced that in family law cases, early disclosure of all financial matters is important. Clearly, the presiding justice took this into account on the husband's argument that the Order for interim support he was subjected to should be changed.

Despite what appeared to be misleading on the wife's part regarding her 2006 income (it was 3 times as high as reported on her Financial Statement), and her counsel not candidly stating in open court that her new partner provided a hefty sum to their living, she was able to get an order for interim support and the judge did not budge from that amount.

What was more interesting to this writer is the presiding judge's comment that neither counsel brought up Rule 59.06 of the Rules of Civil Procedure. As most family law lawyers know that if the Family Law Rules do not cover a certain issue then we look to the Rules of Civil Procedure to fill in the gap mutatis mutandis.

I reproduce Rule 59.06 below:

AMENDING, SETTING ASIDE OR VARYING ORDER

Amending

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. R.R.O. 1990, Reg. 194, r. 59.06 (1).

Setting Aside or Varying

(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed. R.R.O. 1990, Reg. 194, r. 59.06 (2).

Perhaps if counsel in Lepine had put forth an argument on the Rule 59.06 basis, the husband could have got his variation.

Any stories from counsel who have successfully used Rule 59.06 would be vastly appreciated.