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Difference between revisions of "Changing Orders in Family Matters"
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Changing Orders in Family Matters (view source)
Revision as of 13:30, 12 June 2019
, 13:30, 12 June 2019→Divorce Act orders
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[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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. | [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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 best interests to have maximum contact with each parent. This section provides, in part, as follows: | Section 17 of the''[[Divorce Act]]''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. This section provides, in part, as follows: | ||
<blockquote><tt>(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.</tt></blockquote> | <blockquote><tt>(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.</tt></blockquote> | ||
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====Changing orders about custody==== | ====Changing orders about custody under the ''[[Divorce Act]]''==== | ||
A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, describes the things that a court must consider when hearing an application to vary an order for custody: | A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, describes the things that a court must consider when hearing an application to vary an order for custody: | ||
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*a child has been apprehended by child protection workers, | *a child has been apprehended by child protection workers, | ||
*a child has been abused by the parent with custody, and | *a child has been abused by the parent with custody, and | ||
*a mature child over the age of | *a mature child over the age of 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time with the other parent). | ||
The court is unlikely to change custody where the children are happy in an existing stable and secure setting. | The court is unlikely to change custody where the children are happy in an existing stable and secure setting. | ||
====Changing orders about access==== | ====Changing orders about access under the ''[[Divorce Act]]''==== | ||
''Gordon v. Goertz'' also applies to changing access orders: 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 matter | ''Gordon v. Goertz'' also applies to changing access orders: 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 matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo. | ||
Orders for access are most commonly varied because: | Orders for access are most commonly varied because: | ||
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*a parent is constantly late or cancels visits frequently, | *a parent is constantly late or cancels visits frequently, | ||
*a parent has moved and the existing access schedule is no longer convenient, or | *a parent has moved and the existing access schedule is no longer convenient, or | ||
*a mature child over the age of | *a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often. | ||
====Statutory provisions==== | ====Statutory provisions==== | ||