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Difference between revisions of "Changing Family Law Orders and Agreements Involving Children"
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Changing Family Law Orders and Agreements Involving Children (view source)
Revision as of 16:56, 16 April 2019
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==Introduction== | ==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 something to the same effect. It can also be changed by the court setting the agreement aside and making | 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 something to the same effect. It can also be changed by the court setting the agreement aside and making an order in its place. | ||
Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a "change in circumstances" since the order was made. | Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a "change in circumstances" since the order was made. | ||
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===The ''Divorce Act''=== | ===The ''Divorce Act''=== | ||
Under s. 5 of the ''[[Divorce Act]]'', the Supreme Court has the jurisdiction to vary a ''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 have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to <span class="noglossary">transfer</span> the matter to be heard | Under s. 5 of the ''[[Divorce Act]]'', the Supreme Court has the jurisdiction to vary a ''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 have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to <span class="noglossary">transfer</span> the matter to be heard in the other province or territory. | ||
Section 17 gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access. Section 17 also sets out the test for the variation of custody and access orders, and the principle that it is in a child's best interests to have maximum contact with each parent. Section 17 says this: | Section 17 gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access. Section 17 also sets out the test for the variation of custody and access orders, and the principle that it is in a child's best interests to have maximum contact with each parent. Section 17 says this: | ||
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The test to vary orders about contact is at s. 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements". | The test to vary orders about contact is at s. 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements". | ||
The general test under the ''[[Family Law Act]]'' to vary orders is at s. 215(1). It applies when there isn't a specific test required | The general test under the ''[[Family Law Act]]'' to vary orders is at s. 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way ss. 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in s. 251(1) will apply: | ||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
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<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote> | ||
The legal test that the court must apply to set aside part of an agreement depends on the nature of the change requested. | The legal test that the court must apply to set aside part of an agreement depends on the nature of the change requested. Where the change sought relates to parenting arrangements for a child, the court will consider whether there has been a change in circumstances and the court will want to ensure that the agreement is in the best interests of the child. | ||
==Changing orders about custody== | ==Changing orders about custody== | ||