Difference between revisions of "Changing Orders in Family Matters"
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Changing Orders in Family Matters (view source)
Revision as of 13:22, 4 March 2013
, 13:22, 4 March 2013→Orders about the Care of Children
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==Orders about the Care of Children== | ==Orders about the Care of Children== | ||
Parents often want to vary an order about the care of children because something has changed for the parents. The court, on the other hand, is only interested in varying an order | Parents often want to vary an order about the care of children because something has changed for the parents. The court, on the other hand, is only interested in varying an order because something has changed that affects the children. The court will not vary an order simply because one parent is annoyed with the other parent; something new must have happened that affects the child's best interests since the last order was made, or the court will leave the old arrangements alone. If you want to make an application to vary an order about the care of a child, remember that variation applications are always about the child, not you. | ||
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 | 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. | ||
=== | ===''Divorce Act'' Orders=== | ||
Under s. 5 of the Divorce Act, the | Under s. 5 of the ''Divorce Act'', the Supreme Court can to vary ''Divorce Act'' orders 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 matter heard in British Columbia. 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 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 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 | 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: | ||
(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. | <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> | ||
(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact. | <blockquote><tt>(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.</tt></blockquote> | ||
It's up to the Applicant to show that there has been a change in the "condition, means, needs or other circumstances of the child" since the last order was made. | |||
====Changing Orders 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 an order for custody: | |||
*The person applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. | |||
*If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of each parent to satisfy them. | |||
*This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. | |||
*The inquiry does not begin with a legal presumption in favour of the parent with whom the child normally lives, although that parent's views are entitled to great respect. | |||
*Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. | |||
*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 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 matter 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: | |||
#the change is in the best interests of the children in the long run; | |||
#the parent with custody has attempted to alienate the child from the other parent; | |||
#the parent with custody has repeatedly frustrated the other parent's access to the child; | |||
#a child has been apprehended by child protection workers; | |||
#a child has been abused by the parent with custody; and, | |||
#a mature child over the age of eleven or twelve or so has expressed a wish to live with the other parent. | |||
Note that the courts are unlikely to change custody where the children are happy in an existing stable and secure setting. | |||
====Changing Orders About Access==== | |||
''Gordon v. Goertz'' also applies to changing access orders: 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 matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to custody, 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: | |||
#the child has grown up a bit and is more able to spend more time away from the parent with custody; | |||
#one of the parents has been frustrating access; | |||
#a parent is constantly late or cancels visits frequently; | |||
#a parent has moved and the existing access schedule is no longer convenient; or, | |||
#a mature child over the age of eleven or twelve or so has expressed a wish to see the other parent more or less often. | |||
===''Family Law Act'' Orders=== | |||
Both the Supreme Court and the Provincial Court can vary orders for guardianship, parenting arrangements and contact. An application to vary an order can only be brought to the court which made the original order, which means that 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: | |||
<blockquote><tt>On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, 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> | |||
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 "parenting arrangements". | |||
The | The general test under the ''Family Law Act'' to vary orders is at s. 215(1) and 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> | |||
the | 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). | ||
===Changing Orders About | =====Changing Orders About Parental Responsibilities===== | ||
The court will vary an order or agreement which provides for guardianship when the terms of the order or agreement are not in the best interests of the child. | The court will vary an order or agreement which provides for guardianship when the terms of the order or agreement are not in the best interests of the child. | ||
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Back to the top of this chapter. | Back to the top of this chapter. | ||
===Changing Orders About | ====Changing Orders About Parenting Time or Contact==== | ||
The case of Gordon v. Goertz, discussed above, also applies to changing access orders: 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 matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to custody as if the matter was being heard for the first time, with no presumption in favour of the status quo. | The case of Gordon v. Goertz, discussed above, also applies to changing access orders: 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 matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to custody as if the matter was being heard for the first time, with no presumption in favour of the status quo. | ||
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Orders for access are most commonly varied because one of the parents has been frustrating access, a parent is constantly late or cancels visits frequently, the child is older and is more able to spend more time away from the custodial parent, a parent has moved and the existing access schedule is no longer convenient, or the child wishes to see the other parent more or less often. | Orders for access are most commonly varied because one of the parents has been frustrating access, a parent is constantly late or cancels visits frequently, the child is older and is more able to spend more time away from the custodial parent, a parent has moved and the existing access schedule is no longer convenient, or the child wishes to see the other parent more or less often. | ||
====Vague Access Arrangements=== | |||
===Common Problems with Orders for Access, Parenting Time and Contact=== | |||
===Vague Access Arrangements=== | |||
A common problem occurs when an access order or agreement says only that a parent will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for access to be blocked... what is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur. | A common problem occurs when an access order or agreement says only that a parent will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for access to be blocked... what is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur. | ||