Can a judge make an order for spousal support at a settlement conference in the absence of a filed application or supporting affidavit? The case of Creighton v. Creighton 2019 ONSC 5706 answers that question in the affirmative.
The parties attended a settlement conference in October 2018 where a judge made a without prejudice interim spousal support order against the husband as a term of the adjournment of the settlement conference sought by the husband.
The husband appealed the order arguing that the settlement conference judge lacked authority to make a substantive order without an application for support and sworn evidence regarding the husband’s income.
The wife had filed a settlement conference brief which contained a copy of the husband’s 2017 T4 and several support calculations. The husband filed no material, but sought an adjournment. He had already obtained one previous adjournment. Ms. Creighton’s counsel made submissions on spousal support requesting that a support order be made as a term of an adjournment, if the court was disposed to granting the order sought by the husband.
The appeal panel observed that it was apparent that the settlement conference judge was of the view that the husband’s adjournment application, together with his lack of financial disclosure, was part of his strategy to delay the proceedings.
The appellate judges determined from the record below that the settlement conference never commenced. The only issue before the conference judge was the husband’s adjournment application and the order for support was a term of the husband’s successful adjournment application.
They noted that the judge could have made a costs order; made the return date peremptory on the husband; or ordered other terms, given his broad discretion where a party is delinquent with respect to financial disclosure.
They also remarked that the husband’s counsel took no exception to the income evidence supplied by the wife proffering her husband’s 2017 T4 and underscored the without prejudice nature of the order.
The husband sought costs of $21,000 while the wife’s costs were $14,000 based on substantial indemnity. The Court awarded the wife her costs, commenting that the husband’s appeal was a continuation of his delay tactics and was not to be encouraged.
Finally, the Court expressed concern over the economics of the appeal, with the parties having expended more than $40,000 thus far, and given that the appeal was argued in September 2019 and a trial date was scheduled for November 2019, where spousal support would be determined.
A more sensible approach would be been for the husband to pay the interim support, and if his 2018 income was less than his 2017 income, he could have negotiated a lesser amount. If negotiation was not fruitful, he could have scheduled a further settlement conference or a mediation. His last resort would be a trial where the “without prejudice” nature of the order would provide him with relief if he had overpaid.
Lawdiva aka Georgialee Lang
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