Changing Family Law Orders, Awards and Agreements Involving Children

There really is no such thing as an absolutely final order, award or agreement involving children. All orders, awards and agreements involving children may be changed, but, in general, something new and important must have happened since the original order or agreement was made that affects the best interests of the children, including a change in the capacity of an adult to care for them, before the order, award or agreement is changed. In family law, "material change in circumstances" is the term used to describe when something new has happened that may justify a change to an order, award or agreement.

This section talks about changing orders, awards and agreements about the arrangements for children's parenting and contact under the Divorce Act and the Family Law Act.

Introduction

Changing a court order is called varying an order. An order can only be varied by a new order, usually by the same court that made the original 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 something to the same effect. An agreement can also be changed by the court setting all or part of the agreement aside and making an order in its place.

Arbitrator's awards may be varied by an arbitrator if the arbitration agreement or the arbitration award says that the arbitrator will hear applications to vary the award. If the arbitration agreement or the arbitration award doesn't talk about changing awards, the court can make an order changing an arbitration award in the same way that it can make an order changing a court order.

Parents usually want to vary an order, award or agreement because something new and important has happened that affects the best interests of the children. The court will not vary an order, award or agreement lightly. The person who wants to change an order, award or agreement must usually establish that there has been a material change in circumstances since the order, award or agreement was made before the court will even consider making an order that is different from the original order, award or agreement.

The process for applying to vary a court order will depend on whether the original order was made under the federal Divorce Act or the provincial Family Law Act. If the order was made under the Family Law Act, the process will also depend on whether the order was made by the Supreme Court or the Provincial Court. Applications to change arbitration awards and agreements are made under the Family Law Act, and the court will apply almost the same general considerations it applies varying orders to varying arbitration awards and setting aside agreements.

Changing orders under the Divorce Act

Under section 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary a Divorce Act parenting order or contact order 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 application heard in British Columbia. However, if the child has deeper roots and greater social ties in the other province or territory, the court may decide transfer the application to be heard in that other province or territory under section 6(2) of the act.

A "parenting order" is an order about how decision-making responsibilities and parenting time are shared between married spouses. A "contact order" is an order giving a right to spend time with a child to someone who is not a married spouse time with a child. Decision-making responsibilities, parenting time and contact are discussed in the first section of this chapter, Children and Parenting after Separation.

Section 17 of the Divorce Act gives the court the authority to hear and decide applications to vary orders for parenting arrangements or contact. Under this section, the court may vary, cancel, or suspend orders dealing with parenting arrangements or contact. 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. Section 17 says this:

(2.1) If the court makes a variation order in respect of a contact order, it may make an order varying the parenting order to take into account that variation order ...

(2.2) If the court makes a variation order in respect of a parenting order, it may make an order varying any contact order to take into account that variation order ...

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order ...

(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change in the circumstances of the child, and the court shall make a variation order in respect of a parenting order with regard to the allocation of parenting time. ...

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

It is up to the applicant to first show that there has been a change in the "condition, means, needs or other circumstances of the child" under section 17(5) since the last order was made or the court won't change the original order. In the 1996 case of Gordon v Goertz, the Supreme Court of Canada summarized the test to vary orders for custody under the old Divorce Act:

[10] Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther.

[11] The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued.

[12] What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way. The question is whether the previous order might have been different had the circumstances now existing prevailed earlier. Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

[13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

The same approach applies to applications to change parenting orders and contact orders under the new Divorce Act.

When that preliminary test is met, the court will think about the parenting order or contact order that is best interests of the child as if the parenting order or contact order is being made for the first time. In Gordon v Goertz, the court also said that when:

[17] The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh without defaulting to the existing arrangement. The earlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of material change presupposes that the terms of the earlier order might have been different had the change been known at the time. The judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances to decide what custody arrangement now accords with the best interests of the child. The threshold of material change met, it is an error for the judge on a variation application simply to defer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in the circumstances that presently exist.

(Under the old Divorce Act, the law that was in place before the changes to the Divorce Act took effect on 1 March 2021, "decision-making responsibility" was known as custody and "parenting time" and "contact" were known as access. Older that use the terms "custody" and "access" are still good and don't need to be updated to the new language. If you have an older order that says you have custody, you now have decision-making responsibility for your children. If you are or were married to your ex and have an order that says you have access, you now have parenting time.)

Whenever the court is asked to make an order about parenting and contact, section 16(1) of the act 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 sections 16(3) and 16(4).

Changing orders, awards and agreements under the Family Law Act

The Family Law Act has different rules about varying orders, awards and agreements. The rules also change depending on the subject of the part of the order, award or agreement that needs to be varied.

Changing orders

Both the Supreme Court and the Provincial Court have the power to make and change orders about guardianship, parenting arrangements, and contact. As a general rule, applications to vary orders can only be brought to the court that made the original order; 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.

"Parenting arrangements" refers to the parts of an order, award or agreement that talk about how parental responsibilities and parenting time are shared between guardians. A "contact order" is an order giving a right to spend time with a child to someone who is not guardian. Guardianship, parental responsibilities, parenting time and contact are discussed in the first section of this chapter, Children and Parenting after Separation.

Section 47 of the Family Law Act gives the court the power 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 section 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements":

On application, a court may change, suspend or terminate an order respecting contact with a child 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 general test to vary orders is found at section 215(1) of the Family Law Act. It applies when there isn't a specific test required to vary an order about a specific subject, the way sections 47 and 60 talk about the test to vary orders for parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set 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.

In a 2016 case from the Court of Appeal, Williamson v Williamson, the court confirmed that the "change in circumstances" test that must be met under the Family Law Act before an application to vary parenting arrangements can be considered is the same test that applies to the variation of parenting orders under the Divorce Act, described in the case of Gordon v Goertz discussed above. Under this test, a material change in circumstances is:

• a change in the condition, means, needs, or circumstances of the child or in the ability of the parents to meet the needs of the child,
• which affects the child in an important way, and
• which was either not foreseen by the judge who made the original order.

When this preliminary test is met, the court will think about the orders that are best interests of the child as if the orders were being made for the first time. Whenever the court is asked to make an order about guardianship, parenting arrangements, and contact, section 37(1) of the act 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 sections 37 and 38.

Changing awards

Only the Supreme Court has the power to change awards about guardianship, parenting arrangements, and contact. Section 19.18 of the Family Law Act says that:

(3) On application by a party, the Supreme Court may change, suspend or terminate all or part of an arbitration award for any reason for which an order in relation to the same matter could be changed, suspended or terminated under this Act.

In other words, to change an award about parenting arrangements, the test in section 47 of the Family Law Act will apply, and to change an award about contact, the test in section 60 of the Family Law Act will apply.

If the court decides there has been a change in circumstances, it will make an order about guardianship, parenting arrangements, or contact. Whenever the court is asked to make an order about guardianship, parenting arrangements, and contact, section 37(1) of the act 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 sections 37 and 38 of the Family Law Act.

Setting aside agreements

The court cannot vary or amend agreements under the Family Law Act. However, when the court is convinced that parts of an agreement are no longer in the best interests of the children, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts of the agreement that were set aside. The act has different tests that must be met to set aside parts of an agreement depending on the subject of the parts someone wants to set aside; there are tests about agreements dealing with the division of property, the payment of child support and spousal support, and parenting after separation. Section 44 says this about agreements concerning parental responsibilities and parenting time:

(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.

Section 58 says almost the same thing about orders agreements concerning contact:

(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting contact with a child if satisfied that the agreement is not in the best interests of the child.

Rather than having to prove that there has been a "material change in circumstances," someone who wants to change an agreement about parental responsibilities, parenting time or contact must first show that the agreement is not in the best interests of the child. If the court agrees, section 214 of the Family Law Act says what happens to agreements when part of an agreement is set aside:

(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.

(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,

(a) the order replaces that part of the agreement that is incorporated, and

(b) the remainder of the agreement remains effective.

(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,

(a) the order replaces the part of the agreement that provides differently for the same subject matter, and

(b) the remainder of the agreement remains effective.

If the court decides that the agreement is not in the best interests of the child, it will make an cancel the parts of the agreement about parenting arrangements or contact and make an order about parenting arrangements or contact, while leaving the rest of the agreement alone and intact. Whenever the court is asked to make an order about parenting arrangements and contact, section 37(1) of the Family Law Act 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 sections 37 and 38 of the act.

Changing guardianship

Section 39 of the Family Law Act has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person is a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, including parents, relatives, and other people who have established a caring relationship with a child. Under section 51(1)(a) of the act, the court may make an order appointing someone as a guardian of a child who isn't presumed to be a guardian.

Section 51(1)(b) of the Family Law Act also allows the court to make an order terminating someone's guardianship of a child. This section doesn't say what the court should consider when deciding whether to terminate someone's standing as a guardian of a child. However, section 37(1) says that whenever the court makes orders about guardianship it must consider only the best interests of the child:

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

For people who are presumed to be guardians, this is the only guidance the Family Law Act provides. For people who were appointed as guardians by court order, section 215 provides the general test to change orders under the act:

(1) ... 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.

In other words, to vary an order appointing a person as guardian, the applicant will have to show that there has been a change in circumstances and explain why it is in the best interests of the child that the person be removed as guardian.

Applications to terminate a person's guardianship of a child are generally only made when:

• a guardian has ceased to be involved with caring for the child, or perhaps has never been involved in the child's care,
• the guardians simply cannot agree about important parenting decisions that need to be made for the child, for example about the child's healthcare, vaccination status, or schooling, or
• the guardians are in very high levels of conflict and rarely agree on any decisions affecting the child.

However, the court will usually be reluctant to remove someone's standing as a child's guardian. Remember that, as we discussed in the Basic Principles section in this chapter, people who are guardians:

• have parenting time with the child,
• are presumed to be able to exercise all parental responsibilities on behalf of the child,
• have day-to-day care and control of the child and day-to-date decision-making responsibility for the child when the child is with them,
• are entitled to get information about the child's health and education from people who have that information,
• are presumed to be entitled to manage property belonging to the child that's worth less than $10,000,
• have the right to object if another guardian wants to move away with the child, and
• can appoint another person to be a guardian of the child in the event of their death.

On the other hand, people who aren't guardians, including parents who aren't guardians, don't have any of these entitlements. They best they can hope to have is contact with the child, but they won't have day-to-day care and control of the child or day-to-date decision-making responsibility for the child when the child is with them, they're not entitled to get information about the child's health and education, and they can't object if a guardian wants to move with the child. As a result, the court will usually look at the conflict between the guardians to see whether any other options will solve the problem before taking the drastic step of removing someone's standing as a guardian. In D. v D., a 2013 Provincial Court decision, the court described such orders as “extreme” and to be granted only in “rare” cases:

[24] When considering an application to terminate a parent's guardianship, I am of the view that considering the factors enumerated in s. 37(2) of the Family Law Act, termination can only occur in the most extreme situations. The approach to be taken is, first, to ask whether, through an allocation of parenting responsibilities, it continues to be in the best interests of the children that the parent remain a guardian. If it is, guardianship should not be terminated. It must be remembered that once a parent is no longer a guardian, that parent loses all parenting responsibilities and rights and is simply an adult who may have contact with the children.

In the 2019 decision of Lessard v Mahoney, the Supreme Court considered the cases to date about terminating someone's standing as a guardian, and said that:

[148] Accordingly, I accept that an application to remove a parent, presumptively a guardian, under s. 51(1)(b) will be granted only in extreme or rare circumstances and provided that it is in the best interests of the child. In that regard, as an alternative, the court should consider whether it is in the child’s best interest to maintain the relationship to a lesser degree by still allowing that parent’s involvement in a more limited fashion by the re-allocation of parental responsibilities as set out in ss. 40 and 41 of the FLA.

[149] The onus is on [the guardian seeking to terminate a person's standing as a guardian] to establish that there have been material changes in the child’s circumstances to justify [the guardian's] removal as guardian and that such removal is in the child’s best interests.

Changing decision-making responsibilities and parental responsibilities

Decision-making responsibilities under the Divorce Act and parental responsibilities under the Family Law Act mean almost the same thing and are all about

The Family Law Act provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:

... the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.

Section 47 talks about orders:

... 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.

Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.

XXX old custody

A 1996 case of the Supreme Court of Canada called Gordon v. Goertz, [1996] 2 SCR 27, sets out the factors a court must consider when hearing an application to vary orders for custody or access made under the Divorce Act:

• The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
• If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of each parent to satisfy the child's needs.
• This assessment is based on the findings of the judge who made the previous order, as well as the new circumstances.
• The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that parent's views are entitled to great respect.
• 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 that 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 case 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.
• The parent with the children's primary residence has attempted to alienate the children from the other parent.
• The parent with the children's primary residence has repeatedly frustrated the other parent's access to the children.
• The child has been apprehended by child protection workers.
• The child has been abused by the parent whom the child primarily lives with.
• A mature child has expressed a wish to live with the other parent.

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

Changing parenting time and contact

Orders and agreements about parenting schedules are most commonly varied because:

• one of the parties has been frustrating the schedule,
• a party is constantly late or cancels visits frequently,
• the child is older and is more able to spend more time with the visiting parent,
• a party has moved and the old parenting schedule is no longer convenient, or
• the child wishes to see the visiting party more or less often.

The case of Gordon v. Goertz also applies to changing access orders under the Divorce Act: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.

Under sections 47 and 60 of the Family Law Act, the court may vary an order for parenting time or contact if it is 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.

Sections 44(4) and 58(4) allow the court to set aside an agreement about parenting time or contact if it is:

...satisfied that the agreement is not in the best interests of the child.

When considering applications like these, both the Divorce Act and the Family Law Act require the court to consider the best interests of the child rather than the needs or interests of the parties.

Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people.

Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including when making decisions about changing orders about parenting after separation. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the Divorce Act now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

Vague parenting schedules

Problems often crop up when an order or agreement says only that a parent will have liberal and generous time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule not to work. What is liberal and generous time anyway? Who decides what is liberal and what is generous? Say an order or agreement says this:

"Sally will have parenting time 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 parenting time 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 day, 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 parenting time with the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.

"Sally's parenting time with 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 prepared to provide specific terms setting out the parenting arrangements.

Reducing time with a child

Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:

• a party has moved far enough away as to make the original access schedule impossible to comply with,
• a mature child has expressed a wish not to see the person,
• a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
• the parties' relationship has worsened to the point that they can no longer cooperate,
• a party has attempted to interfere with the child's relationship with the other party, or
• the party's time with the child is proving harmful to the child's mental or physical health and welfare.

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 or an assessment of the needs of the child, the views of the child, and the ability of each of the child's caregivers to meet the child's needs. The types of assessments that are available to parties to a family law case in British Columbia are discussed in more detail at the start of the Children in Family Law Matters chapter, under the heading Reports and Assessments.

Increasing time with a child

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

• a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship,
• a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement,
• a child is older and able to spend more time away from a parent, or
• a child over the age of eleven or twelve or so has expressed a wish to see more of the other person.

These are just a few of the circumstances in which a person'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.

Resources and links

Legislation

• Family Law Act
• Divorce Act

Links

• Legal Services Society's Family Law website's information page "Court orders"
  • See "Change an order or set aside an agreement made in BC" and "When can you change a final order?"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 6, 2021.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.