Changing Family Law Orders and Agreements Involving Children

There really is no such thing as an absolutely "final" order involving children. All orders involving children can be changed, but, in general, something new and serious must have happened since the original order was made, something which affects the best interests of the children. The same rule applies to changing agreements that deal with children; the court won't change the arrangements made in a fairly negotiated agreement unless there has been a change in circumstances.

This chapter will provide a brief introduction to changing orders involving children and discuss the factors the court will consider in changing orders for custody, guardianship and access. It will also discuss mobility issues, the problems that crop up when a parent wants to move with the children to a new town, new province or new country.

Introduction

Changing an order is called "varying" an order. An order can only be varied by a new order. Changing an agreement is called "amending" an agreement. An agreement can be amended by making a new agreement, usually called an "addendum agreement," or by the court making an order which requires different parenting arrangements than those specified in the agreement.

Parents usually want to vary an order or agreement because something has changed for the parents. The court, on the other hand, is only interested in varying an order or agreement because something has changed for the children. The court will not vary an order or agreement 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. A parent who wishes to bring an application to vary an order or agreement must remember that variation applications are always about the children, not the parent.

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 Relations Act, and, if under the Family Relations Act, whether the order was made by the Supreme Court or the Provincial (Family) Court. The same general considerations that apply to varying an order apply to changing a separation agreement.

The Divorce Act

Under s. 5 of the Divorce Act, the British Columbia Supreme Court has the jurisdiction to vary an Divorce Act order 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 bests 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 is 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.

The Family Law Act

Both the Supreme Court and the Provincial (Family) Court have the jurisdiction to vary orders for custody, access and guardianship under ss. 5 and 6 of the Family Relations Act. As a rule of thumb, variation applications can only be brought to the court which made the original order, and an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial (Family) Court can generally only be varied by the Provincial (Family) Court.

Section 20 of the act gives the court the authority to change or cancel an order where "circumstances have changed since the order was last made or varied." It is up to the applicant to show that circumstances have changed.

Section 24 of the act sets out the test for the variation of custody, guardianship and access orders. This section provides, in part, as follows:

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (a) the health and emotional well being of the child including any special needs for care and treatment; (b) if appropriate, the views of the child; (c) the love, affection and similar ties that exist between the child and other persons; (d) education and training for the child; (e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. (2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

Changing Orders About Custody and Access

A 1996 case of the Supreme Court of Canada called Gordon v. Goertz sets out the factors a court must consider when hearing an application to vary an order for custody or access:

The parent 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 the respective parents 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 custodial parent, although the custodial 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. (This requirement is repeated in both the Divorce Act and the Family Relations Act.) 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:

the change is in the best interests of the children in the long run; a custodial spouse has attempted to alienate the child against the other parent; a custodial spouse has repeatedly frustrated the non-custodial spouse's access to the child; a child has been apprehended by child protection workers; a child has been abused by the custodial parent; and, a mature child over the age of twelve or so has expressed a wish to live with the other parent. Note that the courts are unlikely to change custody where the children are happy in an existing stable and secure setting.

Changing Orders About Guardianship and Parental Responsibilities

The court will vary an order or agreement which provides for guardianship when the terms of the order or agreement are not in the best interests of the child.

In situations of sole custody and joint guardianship, the court may order a change to sole guardianship where the parties simply cannot get along well enough to share parenting decisions. In general, a change from joint to sole guardianship will be ordered where the parents' relationship has worsened to the point that they can no longer cooperate effectively in the best interests of the children.

The court may also change an order for sole guardianship to an order for joint guardianship where the parent with sole guardianship has refused to keep the other parent involved in the child's life or up to date on important events in the child's life.

In situations of sole custody and sole guardianship, guardianship may be changed when the order or agreement for custody is changed, that is, where custody changes from one parent to the other, or where the sole custody arrangement is changed to joint custody.

Orders or agreements for joint guardianship might be changed if:

a parent is refusing to keep the other parent up to speed on important issues and events in the child's life; the parents are persistently unable to agree on important decisions about the child; a parent is intentionally giving false information about the child to the other parent; or, the parents' views about raising the children are fundamentally opposed to each other about something very important, like medical care or religious instruction. Orders or agreements for sole guardianship might be changed if:

the parent with sole guardianship has a history of making poor decisions; the parent with sole guardianship is concealing important developments in the child's life from the other parent; or, the parent without guardianship becomes capable of cooperating with the parent with sole guardianship. Back to the top of this chapter.

Changing Orders About Access, Parenting Time and Contact

The case of Gordon v. Goertz, discussed above, 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 matter was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because one of the parents has been frustrating access, a parent is constantly late or cancels visits frequently, the child is older and is more able to spend more time away from the custodial parent, a parent has moved and the existing access schedule is no longer convenient, or the child wishes to see the other parent more or less often.

Vague Access Arrangements

A common problem occurs when an access order or agreement says only that a parent will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for access to be blocked... 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 or agreement says this:

"Sally will have access to the child from Friday to Sunday." When exactly does Sally's access 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 or agreement 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 the terms of access.

Reducing Access

Cases where an order or agreement for access has been varied to reduce the amount of access include circumstances such as:

the custodial parent has moved far enough away as to make the original access schedule impossible to comply with; where a mature child over the age of twelve or so has expressed a wish not to see the parent; where a non-custodial parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care; where the parents' relationship has worsened to the point that they can no longer co-operate; where a non-custodial parent has attempted to interfere with the child's relationship with the custodial parent; or, where the access 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. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.

Increasing Access

Of course, orders for access can also be changed to increase the amount of time a non-custodial parent has with the child. Circumstances where this has happened include:

where the custodial parent was interfering with the child's relationship with the non-custodial parent, so that more access was required to restore the relationship; where the custodial parent was interfering with and unreasonably limiting the access provided to the other parent in an order or agreement; where a child is older and able to spend more time away from the custodial parent; or, where a child over the age of eleven or twelve or so has expressed a wish to see more of the other 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 or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

Mobility Issues

It sometimes happens that a parent who has the children for most of the time, whether through a court order or a separation agreement, wishes to move out of town. The parent who wants to move generally wants to move because:

there is an employment opportunity; the parent is in a new relationship with someone from out of town; the parent wants to be closer to family; there is an unique educational opportunity for either the parent or the children; or, there is an unique medical or therapeutic opportunity for either the parent or the children. Normally, the parent on the other end of the stick doesn't want his or her children to move since any move out of the local area will impair that parent's ability to see the children as frequently, and the diminution of contact may harm child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's access.

The hazard to the children's relationship with both parents is the fundamental reason why a parent who wants to move must get permission to do so, and permission from the court or the other parent should be obtained well in advance of moving day. Any move greater than, say, a sixty-minute drive may have an adverse impact on the amount and quality of time the other parent spends with the children and potentially damage the children's relationship with that parent. As well, any move that reduces or impairs the other parent's access can also constitute a breach of any agreement or order that deals with access.

It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law is very contradictory on this issue and the best than can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has about a 60% chance of being allowed to do so, and that the principles established in Gordon v. Goertz will govern the court's analysis of the application. In 2011, Professor Rollie Thompson gave a presentation updating the case law on mobility issues in British Columbia; a summary of his comments can be found on my blog.

The court's primary concern when considering such an application is the best interests of the children in the long term. A longer trip to exercise access means not only less time with the children, but usually not being able to see them as often. Not being able to see the children as often, usually means that the bond between the children and that parent may weaken, and that the children will grow apart from that parent. The question, then, is whether or not these problems are counterbalanced by other factors in favour of the move: is the long-term potential damage to the child's relationship with the other parent offset by the long-term benefits to the child of the move?

Some of the factors in favour of a move are these:

the parent seeking the move has better job prospects or a guaranteed job at the proposed destination; the parent has a support network of family and friends at the new home; there is some benefit at the new home not available at the old home, like better schools or medical programs; the parents have resources available to them which will allow the other parent to visit the children frequently, like a lot of money or being an employee of an airline; the children aren't particularly close to or have no relationship with the parent who will be staying behind; or, the children are performing poorly in their present setting, and will do better in the new one. Some of the factors which might indicate that the move is a bad idea are these:

the children have lived in their present setting for a significant amount of time and have established roots in their community; the move will damage or terminate the other parent's relationship with the children; the reason for the move is to alienate the children from the other parent; the parent seeking the move has no particular ties to the destination, or the move is proposed solely for that parent to be in a new relationship; or there is no way to balance the effect of the move with more extended time with the other parent, such as extended summer access, or access over the whole of the winter holiday. It is almost impossible to predict the result of an application to move. Because mobility issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.

Further Reading in this Chapter

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Legislation

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