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 family law court proceedings. 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.

DRAFT

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 or agreement because something has changed that affects 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.

A Note About Language In this chapter, I have used the phrase "custodial parent" to describe the parent with whom the child lives most of the time. It's just shorter than saying "the parent with whom the child lives most of the time," and I don't mean to imply that this parent has sole custody of the children. In fact, most parents these days have joint custody of their children even though one parent plainly has the children for a lot more of the time than the other parent.

Changing Orders About Custody

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

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

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.

Child Support

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 resident 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. "Changing" an order is called "varying" the order.

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:

a court can make an order changing a previous child support order if a change in circumstances has occured since the order was made; any new order for child support must be made according to the Child Support Guidelines; 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, 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 may have to produce their 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 Back to the top of this chapter.

Family Law Act Orders

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any. (1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must (a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and (b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order. (1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that (a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and (b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers. This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties; a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and, 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 unfair.

Financial Statements

When an application to vary a child support order is brought, one or both parties may have to produce their 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 Relations Act dealing with varying a child support order:

s. 1: definitions s. 9: interim orders s. 20: changing or cancelling orders s. 88: each parent has the obligation to support their children s. 91: who may apply for a child support order s. 96: variation proceedings

Spousal Support

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. 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 an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support

When a party seeks to vary a final order for spousal support, 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 provides, in part, as follows:

(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any. To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

Changing Reviewable Orders for Support

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, 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 2010, 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 2014." 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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

=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 a strong presumption 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:

Was the order negotiated and entered into fairly, that is, was there an equality of bargaining power? 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 s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made. If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), 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 Divorce Act (or the Family Relations Act)? 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 act.