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{{JP Boyd on Family Law TOC}}
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There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children can be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children.
This page talks about changing orders for custody and access under the ''Divorce Act'' and about changing orders and agreements about parenting arrangements and contact under the ''Family Law Act''. It will also discuss relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province or country.
==Introduction==
The legal test that the court must apply to set aside part of an agreement changes depending on the subject of the of the part in question. Most of the time, the court will be concerned that the agreement is in the best interests of the child.
==Changing Orders About 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 orders for custody or access made under the ''Divorce Act'':
The courts are unlikely to change custody where the children are happy in an existing stable and secure setting.
==Changing Orders About and Agreements about Guardianship and Parental Responsibilities== 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, like aunts and uncles, grandparents and other people who have established a caring relationship with a child. People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of child by exercising ''parental responsibilities''. Under s. 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and s. 40(3) says:
===Guardianship===
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 person applying to change the order, 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, 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 ss. 47 and 60 of the ''Family Law Act'', the court may vary and order for parenting time or contact if it is satisfied that: <blockquote><tt>... 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.</tt.></blockquote> Sections 44(4) and 58(4) allow the court to set aside an agreement about parenting time or contact if it is: <blockquote><tt>...satisfied that the agreement is not in the best interests of the child.</tt></blockquote> 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. ===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 to be frustrated... what is "liberal and generous" time anyway? Who decides what is "liberal" and what is "generous"? Say an order or agreement says this: <blockquote>"Sally will have parenting time from Friday to Sunday."</blockquote>
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:
<blockquote>"Sally will have the child 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."</blockquote>
Even better would be an order or agreement that says:
<blockquote>"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.</blockquote><blockquote>"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.</blockquote><blockquote>"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.</blockquote><blockquote>"On Fathers' Day, Sally's access to parenting time with the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.</blockquote><blockquote>"Sally's access to 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..."</blockquote>
Where there has been a history of difficulties, the court will generally be quite open to further specifying the terms of access.
===Reducing AccessTime with a Child===
Cases where the parenting schedule in an order or agreement for access 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 amount original access schedule impossible to comply with;#a mature child over the age of access include circumstances twelve or so has expressed a wish not to see the person;#a party has suffered a mental or physical illness, such as:that the children's health and welfare are at risk in his or her 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; and,#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 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 AccessTime 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; and, #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. ==Relocating With or Without a Child== It sometimes happens that a parent who has the children for most of the time, whether because of a court order or a separation agreement, wants to move out of town. The parent who wants to move generally wants to move because:
The courttough part about all of this is that it's primary concern when considering such an application is the best interests of the children in the long term. A longer trip all fine and dandy to know what happens to exercise access means not only less time with the childrenpeople on a ''statistical'' basis, but usually not being able statistics don't tell you anything about what is going to see them as often. Not being able happen if ''you'' want to see the children as oftenmove! However, usually means that some of the bond between the children and factors 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 courts have found to favour of the a proposed moveare these: 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 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 parentspouse's relationship with the children;#the reason for the move is to alienate the children from the other parentspouse;#the parent seeking the move has no particular ties to the destination, or the move is proposed solely for that parent spouse 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 parentspouse, 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 moveunder ''Gordon''. Because mobility relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended. ===The Rules under the ''Family Law Act''=== The situation is much different under the ''Family Law Act''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating and a new test to determine whether a guardian should relocate if another guardian objects. Here's how it works. First, under s. 66, a ''guardian'' who plans a move that will have a "significant impact" on the child's relationship with a guardian or other people with a significant role in the child's life must give ''written notice'' of the proposed move ''at least 60 days'' before the move, to all guardians and persons with contact with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by him- or herself. Second, under s. 68, a ''guardian'' who objects to the proposed move must file an application in court to stop the move ''within 30 days'' of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from apply to stop the move. Only guardians can object; people with contact cannot. Third, if the parties can't resolve their views about the move, the ''moving guardian'' must prove, under s. 69(4) that: #he or she has proposed to move "in good faith"; and,#he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and person with significant roles in the child's life. If the moving guardian can do this, the move is presumed to be in the child's best interests unless another guardian can convince the court otherwise. The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost-equally. In that case, the ''moving guardian'' must prove, under s. 69(5) that: #he or she has proposed to move "in good faith"; #he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and person with significant roles in the child's life; and,#the move is in the child's best interests. The meaning of ''good faith'' is discussed at s. 69(6): <blockquote><tt>For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:</tt></blockquote><blockquote><blockquote><tt>(a) the reasons for the proposed relocation;</tt></blockquote></blockquote><blockquote><blockquote><tt>(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;</tt></blockquote></blockquote><blockquote><blockquote><tt>(c) whether notice was given under section 66;</tt></blockquote></blockquote><blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote> Now, if the move is allowed, the ''objecting guardian'' may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order".
Although a person with contact lacks the ability to apply to stop the moving guardian from relocating, he or she may apply under s. 67(2) for an order for contact or to vary an order for contact "for the purpose of maintaining the relationship between the child and a person having contact with the child".
==Further Reading in this Chapter==
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
FLA, DA
===Links===