The case of Gilkinson v. Nichols involved the Applicant's Father moving to terminate the current child support he was paying the Respondent's Mother. The child support Order had been in place for nearly ten (10) years, and despite an extensive litigation history, including the father previously attempting to terminate support, the matter had stagnated.
The parties had three children together, namely Sommer, now aged 26, Hailie, now aged 23, and Dawson, now aged 22. Hailie graduated high school in 2017 but was diagnosed with a number of learning and behavioral disabilities. She enrolled in a Developmental Social Worker program at Fanshawe College in the Fall of 2020. However, in March 2022, Hailie suffered sudden organ failure and had to take four months off of school for surgery and recovery. She was advised that she could return to school, as long as she completed her degree within 7 years of starting.
Dawson graduated high school in February 2020 and was now working with Netdrill Inc. The Respondent's mother stated that Dawson intended to attend a Commercial Driver training program but had not yet done so. The Respondent's mother conceded that Sommer was no longer a child of the marriage, and hence was no longer entitled to support.
A pair of 2014 Orders provided for child support to be paid by the Applicant's Father to the Respondent's Mother. When the father moved in 2017 to terminate child support, he was ordered to make extensive financial disclosure, including producing an income report. He failed to produce such a report. The Respondent's Mother, however, was also not completely forthcoming with her disclosure. She too had selectively disclosed documents, only providing information regarding Hailie and Dawson’s education, financial assistance, and employment income well after the issues became relevant.
Justice Agarwal first assessed the court’s authority to change temporary support. He stated that the court had inherent jurisdiction to amend interlocutory orders, as this was essential to ensuring fairness and justice between the parties. Temporary Orders are meant to be “imperfect” solutions that do not have the benefit of a full assessment of the evidence that would be available at trial. When new evidence emerges, parties should be able to request that a temporary order be re-assessed.
In this case, the parties' prior child support Order was made on consent, and on a “without prejudice” basis. In determining what aspect of the prior Order was “without prejudice”, Justice Agarwal points to the parties’ conduct in showing that they intended the Order to govern until the parties’ attended the trial. The parties likely contemplated that a final order would be made long before the children reached the age of majority (which they now all had).
In light of the above, His Honour applied a three-part test in assessing whether there should be a variation of the temporary without prejudice Order:
1. Has the Applicant's Father proven a strong prima facie case for a material change in circumstances since the prior Order? AND
2. Would the Applicant's Father suffer undue hardship if the variation was denied?; OR
3. Would the continuation of the existing Order be incongruous and absurd?
His Honour addressed each child in turn, starting with Hailie. He found that there had not been a material change in circumstances, and as such, she remained a child of the marriage. While Hailie worked nearly full-time hours during the tail end of 2022, there was no other evidence proffered by the Applicant's Husband to show that she was financially independent. It was clear that Hailie had taken a pause in her studies due to her significant health issues, and was merely working part-time in her field in the interim. She still couldn’t afford the necessities of life without support from her parents and therefore remained a child of the marriage.
Dawson, on the other hand, was found to be working full-time with Netdrill and considered financially independent to the point where he was no longer a child of the marriage. The Respondent's Mother had failed to show the court why Dawson’s income was lower than one would expect when annualizing his weekly earnings, and Justice Agarwal took an adverse inference to this lack of disclosure. Though she claimed Dawson intended to enroll in a Commercial Driving program, he had not yet done so.
Further, though the Applicant's Father did not provide evidence in support of undue hardship, Justice Agarwal held that continuing an Order from nearly 10 years ago would clearly be absurd. He held that any incongruity of continuing said temporary Order overrides any lack of urgency.
However, His Honour also recognized that the Applicant's Father was not coming into the motion with entirely clean hands. In other words, his failure to produce the relevant income disclosure must also be weighed in light of his motion for variation.
In conclusion, Justice Agarwal held that Sommer and Dawson were no longer considered children of the marriage, and as such, child support for them under the prior Order would hereby cease. Child support for Hailie would continue on an interim without prejudice basis. However, given the Applicant's Father had yet to produce the necessary income report, as required by court Order, Justice Agarwal stated that the previous temporary Order would continue until the Applicant's Father produced the necessary income report.
The case of Gilkinson v Nichols assesses how a court would approach a motion to vary a temporary child support Order. Upon receiving fresh evidence, a court will assess whether there has been a material change in circumstances sufficient to vary the existing Order. In this case, an analysis of whether the children remained ”children of the marriage” was required, which this case offers further insight into the court’s legal analysis. Parties should also be wary that they must be in line with any outstanding court Orders prior to claiming relief, or else they too may not be seen as coming to court with ‘clean hands’.