Wednesday, December 10, 2008

Variation of support

In theory there is no limit on the number of times a variation of support, based on material change, can be brought. That said, today's Court of Appeal decision in Misheal v. Okel, 2008 ONCA 832 makes it clear that bringing numerous variations is highly problematic:

While in theory the husband has the right to move to vary upon a material change, we cannot on any whim reinstigate proceedings that are essentially identical to ones he has recently lost and has under appeal.  The husband is essentially trying to relitigate the motion already dismissed by Murray J., relying upon what is in my view the identical grounds and essentially the same evidence or at least evidence that could or should have been raised previously.  This violates what Arbour J., calls the "principles of judicial economy, consistency, finality and the integrity of the administration of justice": Toronto v. CUPE Local 79, [2003] 3 S.C.R. 77, at paras. 35-55.

[14]          We agree with this conclusion and with the motion judge's reasoning in support of it.  The appellant's second variation motion was an effort to relitigate an issue already adjudicated by Murray J.  As we have said, the appellant's appeal from the order of Murray J. was dismissed by this court.  The appellant now attempts to renew before this court the same arguments considered and rejected by Baltman J., based on essentially the same evidence and grounds for variation unsuccessfully advanced before Murray J. 

2 comments:

Anonymous said...

I;ve been meaning to ask you - it's been years since the child support guidelines came into effect.Do you share my view they have created more litigation (Section 7 add-ons and more claims for shared parenting) in the decade since?

James C Morton said...

I do in fact -- my sense is that much law reform, intended to speed things up, does the reverse. Look at Case Management!