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Michalchuk v Michalchuk

In this case before the Superior Court of Justice, the court dealt with the issue of whether the reconciliation of the parties implicitly or explicitly terminates a previous court order.  On this Motion for interim relief, Justice Pierce analyzes the case law surrounding the issue and determines that reconciliation of the parties, in this instance, terminated the previous order of Justice McKay of the Ontario Court of Justice.

Factual Background

The parties were married in 2003 and separated on May 16, 2012. The mother had two children, K, age 15, and D, age 12 from a previous marriage. In addition, the parties had a biological daughter, KE, age 10. Nevertheless, the father conceded that he stands in loco parentis to the two eldest children, and that they are therefore entitled to child support. On motion, the mother sought orders for sole custody, child support, and spousal support retroactive to the date of separation. The father sought orders for interim joint custody, specified access, and less than table support for the two eldest children.

The parties had initially separated many years earlier. At that time, Justice McKay made an order granting the parties joint custody of KE, providing that the child’s primary residence would be with the mother. The order further provided that the father would have specified access, and would be obligated to pay child support in the amount of $680.00 per month based on an income of $75,000.00.

Initially, neither counsel prepared an argument regarding whether Justice McKay’s order continued to be in effect.  However, after Justice Pierce sought submissions on this question of law, the father took the position that because the order was never set aside, it continued; the mother disagreed.

Court’s Analysis

Justice Pierce thoroughly reviewed the case law on this issue, concluding that “the law has been guilty of inconsistency on the question of whether reconciliation terminates a court order and the legislature has not clarified the issue.”

The court’s review of the jurisprudence revealed the following conclusions:

  • bona fide reconciliation will terminate a previous court order;
  • A custody order is not terminated by the parties’ reconciliation; however, a lengthy reconciliation may lead to a re-examination of the child’s best interests, based on a material change in circumstances;
  • Reconciliation, per se, does not terminate a court order; however, the order may be unenforceable during the period of reconciliation;
  • An order is revived and becomes enforceable if the reconciliation fails; and
  • Ongoing validity of the order is affected by the intention of the parties.

Justice Pierce was careful to note that the “proposition that the conduct of the parties in reconciling terminates a court order is confined to family law.”

Ultimately, the court was of the view that neither party had behaved as though the order had continued during the four year period in which they reconciled.  Moreover, until it was mentioned by Justice Pierce, neither party had attempted to enforce the provisions of the previous order. As such, the court held that the order of Justice McKay had not remained in effect.

In making this decision, and in an effort to clarify the law on this point, Justice Pierce was careful to note that,

Spouses do not embark upon a reconciliation expecting it to fail; if asked, most, if not all spouses, would say that the court order was cancelled by the reconciliation. Invariably, the order is not acted on during the period of reconciliation. Arguably, it is not conducive to marital harmony to have a court order hanging over the parties’ heads in case the reconciliation fails. Public policy would make this unseemly.

He further acknowledged that,

It would be an unusual case where the order made before the reconciliation would “fit” the family after separation. If nothing else, the court should re-examine the best interests of the children before assuming that its previous order was appropriate.

Court Orders

After determining the issue of aforementioned issue, the court ordered that the father’s work schedule and repetition of conflict in the home involving the parents and children militated against an order for joint custody. Accordingly, Justice Pierce ordered that KE’s best interests were served by having her mother be the sole decision maker, at least on an interim basis.  With respect to the older children, the court ordered that the father have reasonable access on reasonable notice, subject to the children’s wishes. Furthermore, Justice Pierce held that the father should have interim access with KE two weekends a month and a weekly dinner, in order to accommodate his work schedule.

The court further ordered child support of $1,298 for three children, based on an income of $87,586.20, allowing the father a reduction in support, as the two eldest children received support from their biological father.  The father was also ordered to pay $1,323.00 in spousal support. Retroactive child and spousal support were left to be resolved at trial.