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Difference between revisions of "Changing Supreme Court Family Law Orders"
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There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it): | There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it): | ||
In ''[ | In ''[https://canlii.ca/t/5427 Shackleton v. Shackleton]'', 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside: | ||
<blockquote>[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent | <blockquote>[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent | ||
order will operate as a final judgment: ''[ | order will operate as a final judgment: ''[https://canlii.ca/t/gc6td Campbell v. Campbell (1954)]'', [1955] 1 DLR 304 (BCSC). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract […]</blockquote> | ||
The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process. For more information about changing consent orders for spousal support, see the section "Changing consent orders for spousal support" later in this chapter. | The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process. For more information about changing consent orders for spousal support, see the section "Changing consent orders for spousal support" later in this chapter. | ||
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Under [https://canlii.ca/t/7vbw#sec5 section 5] of the ''[[Divorce Act]]'', the BC Supreme Court can vary ''Divorce Act'' orders for parenting or contact made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that <span class="noglossary">a transfer of</span> the matter to be heard there. | Under [https://canlii.ca/t/7vbw#sec5 section 5] of the ''[[Divorce Act]]'', the BC Supreme Court can vary ''Divorce Act'' orders for parenting or contact made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that <span class="noglossary">a transfer of</span> the matter to be heard there. | ||
[ | [https://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend support, parenting, or contact orders. | ||
====Changing parenting orders under the ''[[Divorce Act]]''==== | ====Changing parenting orders under the ''[[Divorce Act]]''==== | ||
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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. | 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. | ||
[ | [https://canlii.ca/t/80mh#sec14 Section 14] of the Guidelines defines a ''change in circumstances'' as follows: | ||
<blockquote><tt>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:</tt></blockquote> | <blockquote><tt>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:</tt></blockquote> | ||
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<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote> | <blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote> | ||
This all boils down to the idea that the court can change an order for child support if there has been a change of circumstances, as defined by [ | This all boils down to the idea that the court can change an order for child support if there has been a change of circumstances, as defined by [https://canlii.ca/t/80mh#sec14 section 14] of the [[Child Support Guidelines]] (reproduced above), since the last order, or if new evidence has been discovered since the order was made. | ||
====Financial Statements==== | ====Financial Statements==== | ||
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It used to be the case that a claim for spousal support that 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 the person in financial need. | It used to be the case that a claim for spousal support that 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 the person in financial need. | ||
A 2003 judgment of the British Columbia Court of Appeal, ''[ | A 2003 judgment of the British Columbia Court of Appeal, ''[https://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that 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 final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided. | ||
A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their 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 serious, disabling 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. | A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their 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 serious, disabling 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. | ||
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===Changing an order allowing support=== | ===Changing an order allowing support=== | ||
When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they 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 ''[ | When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they 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 ''[https://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[https://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370, the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A court hearing a variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation. | ||
[ | [https://canlii.ca/t/7vbw#sec17 Section 17(4.1)] of the ''[[Divorce Act]]'' says this: | ||
<blockquote><tt>(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.</tt></blockquote> | <blockquote><tt>(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.</tt></blockquote> | ||
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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. There is an assumption that the parties to a consent order knew what they were doing when they agreed to the order, had a reasonable knowledge of their circumstances at the time, and could reasonably foresee how their circumstances might change in the future. | 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. There is an assumption that the parties to a consent order knew what they were doing when they agreed to the order, had a reasonable knowledge of their circumstances at the time, and could reasonably foresee how their circumstances might change in the future. | ||
The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[ | The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[https://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, 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 agreement negotiated and entered into fairly? (i.e. was there an equality of bargaining power?) | #Was the agreement negotiated and entered into fairly? (i.e. was there an equality of bargaining power?) | ||
