Motions to set aside or vary support orders are part of family law practice. But can such a motion be precluded by a Court of Appeal decision in the relevant family law dispute? The Ontario Court of Appeal’s May 23, 2014 decision in Putsai v. Putsai considered this and arrived at the answer “it depends” – while such a decision can be res judicata of the meaning of a particular order, it cannot preclude a motion to vary such an order when there has been a material change in circumstances.

Understanding the case requires understanding its basic chronology. In November 2008, less than a year after the parties had obtained a consent order in this respect, the husband brought a motion to vary support based on changed circumstances. This motion was dismissed in August 2009, and the Court of Appeal upheld the dismissal of the motion in March 2010, holding there has been no change in circumstances and confirming that “the consent order provided that only the quantum but not the duration of spousal support could be subject to variation.”

The husband brought another motion to vary the consent order in October 2010. This motion was referred to trial, where it was proven that the wife was living a lavish lifestyle, despite claiming to earn only $36,000 per year. The trial judge held there had been a material change in circumstances and he ordered that the wife should stop receiving spousal support and commence paying child support.

On appeal, the wife’s first argument was that the March 2010 Court of Appeal decision precluded the husband from bringing a motion to end payment of spousal support. Rouleau J.A., for a unanimous Court, did not accept this argument. He held:

[18]     … The Court of Appeal’s decision on the earlier variation application finally determined the proper interpretation of the consent order. As a result, the respondent was precluded from advancing, on a subsequent application, any different interpretation of the consent order. However, the fact that the parties agreed not to terminate the support does not prevent a party from returning to court where there is a change in circumstances such as to warrant a variation including the possibility of ending support altogether.

[20]     The fact that the Court of Appeal has, in the appeal from the first application, finally determined the proper interpretation of the consent order does not prevent the respondent from seeking a variation of that consent order. The threshold question for the court, in deciding whether a variation should be granted, is whether there has been a material change of circumstances in accordance with the test articulated in L.M.P. and Willick.

[Emphasis added]

Despite disagreeing with the wife’s threshold argument, and agreeing with the trial judge that there had been a material change in circumstances, Rouleau J.A. held that the approach taken by the trial judge to varying the consent order was incorrect. He correspondingly ordered a new trial, while simultaneously “strongly urg[ing]” the parties to settle.