Changing Orders in Family Matters

Unless you're talking about property and debt or divorce, there really is no such thing as an absolutely final order in court proceedings about family law matters. Children grow up, adults take new jobs and start new relationships, and the obligations involved in leaving a relationship don't end with the final order. As time passes, final orders often need to be updated as circumstances change.

Changing an order is called varying an order. In general, orders made under the federal Divorce Act and the provincial Family Law Act may be varied if there has been a change in circumstances since the order was made. Of course the change has to be an important change, and varying the order needs to be the right solution.

Orders about the Care of Children

Parents often want to vary an order about the care of children because something has changed for the parents. The court, on the other hand, is only interested in varying an order because something has changed that affects the children. The court will not vary an order simply because one parent is annoyed with the other parent; something new must have happened that affects the child's best interests since the last order was made, or the court will leave the old arrangements alone. If you want to make an application to vary an order about the care of a child, remember that variation applications are always about the child, not you.

The process for applying to vary an order will depend on whether the original order was made under the federal Divorce Act or the provincial Family Law Act, and if under the Family Law Act, whether the order was made by the Supreme Court or the Provincial Court.

Divorce Act Orders

Under s. 5 of the Divorce Act, the Supreme Court can to vary Divorce Act orders for custody or access made anywhere in Canada, as long as the person making the application, the Applicant, ordinarily lives in British Columbia when the application is made or if both spouses agree to have the matter heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to transfer the matter to be heard there.

Section 17 of the act gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel or suspend orders dealing with custody and access.

Section 17 also sets out the test for the variation of custody and access orders, and the principle that it is in a child's best interests to have maximum contact with each parent. This section provides, in part, as follows:

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

It's up to the Applicant to show that there has been a change in the "condition, means, needs or other circumstances of the child" since the last order was made.

Changing Orders About Custody

A 1996 case of the Supreme Court of Canada called Gordon v. Goertz describes the things that a court must consider when hearing an application to vary an order for custody:

• The person applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
• If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of each parent to satisfy them.
• This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
• The inquiry does not begin with a legal presumption in favour of the parent with whom the child normally lives, although that parent's views are entitled to great respect.
• Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
• The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

In other words, the applicant must show that there has been a serious change in circumstances which affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the matter was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the status quo.

Cases where an order for custody has been varied include circumstances such as where:

1. the change is in the best interests of the children in the long run;
2. the parent with custody has attempted to alienate the child from the other parent;
3. the parent with custody has repeatedly frustrated the other parent's access to the child;
4. a child has been apprehended by child protection workers;
5. a child has been abused by the parent with custody; and,
6. a mature child over the age of eleven or twelve or so has expressed a wish to live with the other parent.

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

Changing Orders About Access

Gordon v. Goertz also applies to changing access orders: the applicant must show that there has been a serious change in circumstances which affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to custody, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

1. the child has grown up a bit and is more able to spend more time away from the parent with custody;
2. one of the parents has been frustrating access;
3. a parent is constantly late or cancels visits frequently;
4. a parent has moved and the existing access schedule is no longer convenient; or,
5. a mature child over the age of eleven or twelve or so has expressed a wish to see the other parent more or less often.

Statutory Provisions

These are the primary sections of the Divorce Act dealing with varying an order about custody or access:

• s. 2: definitions
• s. 5: jurisdiction in variation proceedings
• s. 16: orders for custody and access
• s. 17: varying orders

Family Law Act Orders

Both the Supreme Court and the Provincial Court can vary orders for guardianship, parenting arrangements and contact. An application to vary an order can only be brought to the court which made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 sets out the test to vary orders about parenting arrangements:

On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.

The test to vary orders about contact is at s. 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements".

The general test under the Family Law Act to vary orders is at s. 215(1) and applies when there isn't a specific test required for a particular order the way ss. 47 and 60 are required for orders about parenting arrangements and contact. Since there's no specific to test to vary orders for guardianship, it's the general test that will apply:

Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The Family Law Act is too new to know how the court will handle questions like these.

These are the primary sections of the Family Law Act dealing with varying orders about the care of children:

• s. 1: definitions
• s. 37: best interests of the child
• s. 39: who is presumed to be a guardian
• s. 41: parental responsibilities
• s. 42: parenting time
• s. 45: orders about parenting arrangements
• s. 47: changing orders about parenting arrangements
• s. 216: interim orders

Common Issues with Orders for Access, Parenting Time and Contact

Sometimes conflict about a parenting schedule happens because the schedule is vague, imprecise and open to interpretation. At other times, circumstances change making a parenting schedule obsolete, perhaps because a child has grown up and has her own opinions or perhaps because a parent work schedule has changed.

Vague Schedules

Sometimes the easiest way to fix a problem with a parenting schedule isn't to apply to court to rigidly enforce the order, but to get creative and thing about ways that the order could be changed to solve the problem. Say someone's shift ends at 5:00 but the child is supposed to be picked up at 4:00. The answer may not be to enforce the order, it might to change it.

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated... what is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say an order says this:

"Sally will have parenting time with the child from Friday to Sunday."

When exactly does Sally's parenting time start? When does it end? Who is supposed to pick the child up and drop her off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order would say:

"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays."

Even better would be an order or agreement that says:

"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development date, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm.

"Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access to the child.

"In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Bob.

"On Fathers' Day, Sally's access to the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.

"Sally's access to the child will be suspended during the summer, winter and spring school holidays, during which periods the following holiday access schedule will prevail..."

Where there has been a history of difficulties, the court will generally be quite open to further specifying a parenting schedule.

Reducing a Parenting Schedule

Situations where a parenting schedule has been varied to reduce the amount of time a person has with a child include circumstances such as when:

1. the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with;
2. a mature child over the age of twelve or so has expressed a wish not to see a parent;
3. a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
4. the parents' relationship has worsened to the point that they can no longer cooperate;
5. one parent has attempted to interfere with the child's relationship with the other parent; or,
6. the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

Increasing a Parenting Schedule

Of course, parenting schedules can also be changed to increase the amount of time a parent has with the child. Circumstances where this has happened include where:

1. a parent was interfering with the child's relationship with the parent, so that more time with the child was required to restore the relationship;
2. the parent with whom the child usually lives was interfering with and unreasonably limiting the time provided to the other parent by an order;
3. a child is older and able to spend more time away from the parent with whom the child usually lives; or,
4. a child over the age of eleven or twelve or so has expressed a wish to spend more time with a parent.

These are just a few of the circumstances in which a parent's time with the child can be increased from the amount given in an order. As long as there has been a change in circumstances since the order was made and the increased time is in the children's best interests, parenting schedules should be adjusted.

Child Support

Orders about child support mostly need to change because the payor's income has gone up or down, because the children have grown up and are no longer entitled to benefit from the payment of child support or because one or more of the children have left the recipient's home to live with the payor.

Divorce Act Orders

Under s. 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act.

Section 17 of the Divorce Act says this:

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

This all boils down to these principles:

1. a court can make an order changing a previous child support order if a change in circumstances has occurred since the order was made;
2. any new order for child support must be made according to the Child Support Guidelines;
3. the court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines inappropriate; and,
4. the court may also make an order for support different from the Guidelines if both spouses agree to the order and reasonable arrangements have been made for the support of the children.

Before the Child Support Guidelines came into effect, an applicant had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances.

Section 14 of the Guidelines defines a change in circumstances as follows:

For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...

Financial Statements

When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

• The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables.
• Both parties must produce Financial Statements dealing with income if custody is shared or split.
• Both parties must produce complete Financial Statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority.

These new Financial Statements give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.

Statutory Provisions

These are the primary sections of the Divorce Act dealing with varying child support orders.

• s. 2: definitions
• s. 4: jurisdiction to make child support orders
• s. 5: jurisdiction to change orders
• s. 15.1: child support
• s. 15.3: child support has priority over spousal support
• s. 17: variation proceedings

Family Law Act Orders

Section 152(2) of the Family Law Act gives a court the authority to cancel, vary or suspend an order for child support where:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.

This all boils down to the idea that the court can change an order for child support if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, reproduced above, since the last order or if new evidence is discovered since the order was made.

Financial Statements

When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

• The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables.
• Both parties must produce Financial Statements dealing with income if custody is shared or split.
• Both parties must produce complete Financial Statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority.

These new Financial Statements give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.

Statutory Provisions

These are the primary sections of the Family Law Act dealing with varying a child support order:

• s. 1: general definitions
• s. 3: who is a spouse
• s. 146: definitions for support purposes
• s. 147: who must pay support
• s. 149: orders about support
• s. 150: calculating the amount of child support
• s. 153: changing orders for child support
• s. 174: arrears of support
• s. 216: interim orders

Spousal Support

A final order for spousal support is an order made following the trial of a court proceeding or made by the consent of the parties as a settlement of the proceeding. Changing an order is called varying an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of a court proceeding and can't be changed. This rule applies whether the order requires the payment of spousal support or rejects a party's claim for spousal support.

Changing an Order Refusing Support

It used to be the case that a claim for spousal support which was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for someone in financial need.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on.

In practice this means that final orders should not say that a claim for support is dismissed but is only adjourned generally, in other words they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in his or her financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

Changing an Order Allowing Support

When a party seeks to vary a final order for spousal support made under the Divorce Act, he or she must show that there has been a material change in circumstances affecting one or both of the parties. A material change is a significant change. In the 1996 case of T. (T.L.A.) v. T. (W.W.), the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of G. (L.) v. B. (G.), the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made.

Section 17 of the Divorce Act says this:

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

Section 167 of the Family Law Act is a bit broader and looks whether there is new evidence as well as a change in the circumstances of the recipient:

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

Changing Reviewable Orders for Support

Reviewable orders for spousal support are orders that impose an duty to pay spousal support without a particular end date, but allow the order to be reassessed every now and then. Reviewable orders will say something like this:

"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2018."

Or, they might say something like this:

"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."

Section 168 of the Family Law Act says this about reviewable orders:

(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for

(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,

(b) the type of family dispute resolution by which the review will take place,

(c) the grounds on which a review will be permitted, and

(d) the matters to be considered for the purposes of a review.

When the review date for an order for spousal support arrives, the payor's obligation to keep making the support payments does not end. At that time, it is usually open to both parties to start negotiations or make an application about spousal support. The payor may wish to have the amount of support reduced or have his or her obligation to pay support ended. The recipient, on the other hand, usually seeks to have the support maintained, and, sometimes, increased. If neither party makes an application to have the issue of spousal support re-evaluated, the existing order continues to be in effect.

Once one of the parties make an application for the review of the order for spousal support, the issue is heard by the court as a fresh hearing of the issue, called a hearing de novo, as if the question of spousal support were being determined for the first time. Section 168(2) says what can happen if the review is by way of a court hearing:

(2) On review, a court, on application, may do one or more of the following:

(a) confirm an agreement or order respecting spousal support;

(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;

(c) make an order under section 165.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing.

Changing Consent Orders for Support

A consent order is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the "material change" test, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

1. Was the order negotiated and entered into fairly, that is, was there an equality of bargaining power?
2. If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in the legislation at the time it was made.
3. If the order did meet the objectives set out in the legislation, does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the legislation.

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