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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 section 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 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 Law Act'', and, if under the ''Family Law Act'', whether the order was made by the Supreme Court or the Provincial Court. Almost the same general considerations that apply to varying orders apply to setting aside agreements.
===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 agree to have the application heard here. 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 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:
<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>
====Varying orders====
Both the Supreme Court and the Provincial Court have the jurisdiction to vary orders and set aside agreements for guardianship, parenting arrangements , and contact. ''Parenting arrangements'' means the parts of an order or agreement that talk about parental responsibilities and parenting time. As a rule of thumb, applications to vary orders can only be brought to the court which that made the original order, and an . An order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.
Section 47 sets out the test to vary orders about 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) and . It applies when there isn't a specific test required for a particular order the way ss. 47 and 60 are required for orders about parenting arrangements and contact. Since there's no specific to test to vary orders for guardianship, it's the general test that 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>
Whenever the court is asked to make an order about guardianship, parenting arrangements , and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).
Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements , or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.
====Setting aside agreements====
<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 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 custody==
*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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the case 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:
==Changing orders 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===
Under s. 51(1) of the ''[[Family Law Act]]'', the court may make an order appointing someone as a guardian of a child or make an order "terminating" somone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship. However, however s.37 (1) says that:
<blockquote><tt>In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>
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 ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' also applies to changing access orders under the ''Divorce Act'': the applicant must show that there has been a serious change in circumstances which that 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 an 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>
===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 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>
*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 an evaluation or a needs of the child assessment which that supports the allegations. Needs of the child assessments and views of the child reports are discussed in more detail in the section on chapter [[Children in Family Law Matters#Reports and assessments | reports and assessments]] under , within the chapter page sectionsection [[Children in Family Law Matters#Reports and assessments | reports and assessments]].
===Increasing time 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.
*There is an employment opportunity.
*The parent is in a new relationship with someone from out of town,.*the The parent wants to be closer to family.
*There is a unique educational opportunity for either the parent or the children.
*There is a unique medical or therapeutic opportunity for either the parent or the children.