Changing Final Orders in Family Matters

From Clicklaw Wikibooks

Unless you're talking about propertySomething which can be owned. See "chattels" and "real property." and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed. or divorce, there really is no such thing as an absolutely final orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." in court proceedings about family law matters. Children grow up, adults take new jobs and start new relationships, and the obligations involved in leaving a relationship don't end with the final order. As time passes, final orders often need to be updated as circumstances change.

Changing an order is called varying an order. In general, orders made under the federal Divorce Act and the provincial Family Law Act may be varied if there has been a change in circumstances since the order was made. Of course the change has to be an important change, and varying the order needs to be the right solution.

This section discusses when you might want to apply to court to vary an order, and how to do it.

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 because something has changed that affects the children. The court will not vary an order simply because one parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." is annoyed with the other parent; something new must have happened that affects the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."'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 Law Act, and if under the Family Law Act, whether the order was made by the Supreme Court or the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.".

Divorce Act orders

Under s. 5 of the Divorce Act, the Supreme Court can vary Divorce Act orders for custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." or accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." made anywhere in Canada, as long as the person making the applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.", the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.", 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 transfer the matter to be heard there.

Section 17 of the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." 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 contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." 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.
(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 spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." 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.

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 CanadaThe highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court." called Gordon v. Goertz, [1996] 2 SCR 27, describes the things that a court must consider when hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." 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 materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." change in circumstances affecting the child.
  • If the threshold is met, the judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. 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 evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." 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 caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.".
  • 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 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 decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact.", 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 11 or 12 or so has expressed a wish to live with the other parent.

The court is 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 that 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 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:

  • 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 11 or 12 or so has expressed a wish to see the other parent more or less often.

Statutory provisions

These are the primary sections of the Divorce Act dealing with varying an order about custody or access:

  • s. 2: definitions
  • s. 5: jurisdictionWith respect to judges, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution." in variation proceedings
  • s. 16: orders for custody and access
  • s. 17: varying orders

Family Law Act orders

Both the Supreme Court and the Provincial Court can vary orders for guardianship, parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time.", and contact. An application to vary an order can only be brought to the court that 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 of the Family Law Act sets out the test to vary orders about parenting arrangements:

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.

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 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:

Subject to this Act, a court on application by a partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.

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.

These are the primary sections of the Family Law Act dealing with varying orders about the care of children:

  • s. 1: definitions
  • s. 37: best interests of the child
  • s. 39: who is presumed to be a guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."
  • s. 41: parental responsibilitiesA term under the ''Family Law Act'' which describes the various responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian."
  • s. 42: parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian."
  • s. 45: orders about parenting arrangements
  • s. 47: changing orders about parenting arrangements
  • s. 216: interim orders

Common issues with orders for access, parenting time, and contact

Sometimes conflict about a parenting schedule happens because the schedule is vague, imprecise, and open to interpretation. At other times, circumstances change, making a parenting schedule obsolete. Perhaps a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

Vague schedules

Sometimes the easiest way to fix a problem with a parenting schedule isn't to apply to court to rigidly enforce the order, but to get creative and think about ways that the order could be changed to solve the problem. Say someone's shift ends at 5:00 but the child is supposed to be picked up at 4:00. The answer may not be to enforce the order; it may be to change it.

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. 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.

Say, for example, that an order says this:

"Sally will have parenting time with the child from Friday to Sunday."

When exactly does Sally's parenting time start? When does it end? Who is supposed to pick the child up and drop her off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order would say:

"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays."

Even better would be an order or agreement that says:

"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development date, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm.
"Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access to the child.
"In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Bob.
"On Fathers' Day, Sally's access to the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.
"Sally's access to the child will be suspended during the summer, winter and spring school holidays, during which periods the following holiday access schedule will prevail..."

Where there has been a history of difficulties, the court will generally be quite open to further specifying a parenting schedule.

Reducing a parenting schedule

Situations where a parenting schedule has been varied to reduce the amount of time a person has with a child include circumstances such as when:

  • the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
  • a mature child over the age of 12 or so has expressed a wish not to see a parent,
  • a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care,
  • the parents' relationship has worsened to the point that they can no longer cooperate,
  • one parent has attempted to interfere with the child's relationship with the other parent, or
  • the schedule is proving harmful to the mental or physical health and welfare of the child.

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 a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter Children in Family Law Matters (in the section on reports and assessments) and in How Do I Get a Needs of the Child Assessment?

Increasing a parenting schedule

Of course, parenting schedules can also be changed to increase the amount of time a parent has with the child. Circumstances where this has happened include where:

  • a parent was interfering with the child's relationship with the other parent, so that more time with the child was required to restore that relationship,
  • the parent with whom the child usually lives was interfering with and unreasonably limiting the time provided to the other parent by an order,
  • a child is older and able to spend more time away from the parent with whom the child usually lives, or,
  • a child over the age of 11 or 12 or so has expressed a wish to spend more time with a parent.

These are just a few of the circumstances in which a parent's time with the child can be increased from the amount given in an order. As long as there has been a change in circumstances since the order was made and the increased time is in the children's best interests, parenting schedules should be adjusted.

Orders for child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses.

Orders about child support mostly need to change because the payor's income has gone up or down, because the children have grown up and are no longer entitled to benefit from the payment of child support, or because one or more of the children have left the recipient's home to live with the payor.

Divorce Act orders

Under s. 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the Divorce Act.) Section 17 of the Divorce Act gives the court the authority to change, cancel, or suspend orders for support made under that act.

Section 17 of the Divorce Act says this:

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." or a written agreement respecting the financial obligations of the spouses, or the division or transferIn law, the act of an owner of a thing giving ownership of that thing to another person, in exchange for money or other property in the case of a sale or in exchange for other rights in the case of a family law agreement. See "family law agreements," "ownership" and "sale." of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

This all boils down to these principles:

  • a court can make an order changing a previous child support order if a change in circumstances has occurred since the order was made,
  • any new order for child support must be made according to the Child Support Guidelines,
  • the court may make an order for support different from the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved. if a previous order or agreement has made special provisions for the care of the child that would make an order under the Guidelines inappropriate, and
  • the court may also make an order for support different from the Guidelines if both spouses agree to the order and reasonable arrangements have been made for the support of the children.

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.

Section 14 of the Guidelines defines a change in circumstances as follows:

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:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...

Financial Statements

When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given through a Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe his or her income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury.", Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oathIn law, a promise of the truth of a statement secured by one's faith in a god, and the prospect of torment in the afterlife in the event the promise is falsely made. Someone making an affidavit will often give his or her evidence in that affidavit under oath; a witness giving oral evidence will often give his or her evidence in court under oath. See "affidavit," "affirm," "perjury" and "witness." or affirmation like an affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.". These are the rules about who may have to produce a Financial Statement:

  • The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables.
  • Both parties must produce Financial Statement dealing with income if custody is shared or split.
  • Both parties must produce complete Financial Statement covering income, expenses, assets and liabilities if there is a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. about the children's special expenses, a claim for undue hardshipA term used by the Child Support Guidelines to describe circumstances when payment of the table amount of child support would cause financial difficulty for the payor or the recipient, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount.", the payor's income is above $150,000 per year, or one or more of the children are over the age of majorityThe age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant.".

These new Financial Statements are needed to give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.

Links to and examples of the Financial Statement and other court forms can be found in Supreme Court Forms & Examples.

Statutory provisions

These are the primary sections of the Divorce Act dealing with varying child support orders.

  • s. 2: definitions
  • s. 4: jurisdiction to make child support orders
  • s. 5: jurisdiction to change orders
  • s. 15.1: child support
  • s. 15.3: child support has priority over spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship.
  • s. 17: variation proceedings

Family Law Act orders

Section 152(2) of the Family Law Act gives a court the authority to cancel, vary, or suspend an order for child support where:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. by a party was discovered after the last order was made.

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 s. 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

When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given through a Financial Statement, Form F8 of Supreme Court Family Rules or Form 4 of the Provincial Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

  • The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables.
  • Both parties must produce Financial Statement dealing with income if custody is shared or split.
  • Both parties must produce complete Financial Statement covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children are over the age of majority.

These new Financial Statements are needed to give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.

Links to and examples of the Financial Statement and other court forms can be found in Supreme Court Forms & Examples and Provincial Court Forms & Examples.

Statutory provisions

These are the primary sections of the Family Law Act dealing with varying a child support order:

  • s. 1: general definitions
  • s. 3: who is a spouse
  • s. 146: definitions for support purposes
  • s. 147: who must pay support
  • s. 149: orders about support
  • s. 150: calculating the amount of child support
  • s. 153: changing orders for child support
  • s. 174: arrearsChild support or spousal support that is owing because of an order or agreement but is unpaid. of support
  • s. 216: interim orders

Orders about spousal support

A final order for spousal support is an order made following the trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." of a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. or made by the consent of the parties as a settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer." of the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action.". Changing an order is called varying an order.

In general, a final order is just that, final. Without an appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia., the final order represents the end of a court proceeding and can't be changed. This rule applies whether the order requires the payment of spousal support or rejects a party's claim for spousal support and says that support shouldn't be paid.

Changing an order refusing support

It used to be the case that a claim for spousal support that was dismissed in a final judgmentA judge's decision that finally determines some or all of the claims in a court proceeding, following which there is no other recourse open to a dissatisfied party except an appeal. See "decision." 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 AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal.", 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 his or her 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.

Changing an order allowing support

When a party seeks to vary a final order for spousal support made under the Divorce Act, he or she 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 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 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.

Section 17 of the Divorce Act says this:

(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.
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportionIn family law, to divide equally, usually referring to the division of family property between spouses. See also "reapportion." between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." for the support of any child of the marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.";
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

Section 167 of the Family Law Act is a bit broader and looks at whether there is new evidence as well as a change in the circumstances of the recipient:

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:
(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

Changing reviewable orders for support

"Reviewable" orders for spousal support are orders that impose a duty to pay spousal support without a particular end date, but allow the order to be reassessed every now and then. A reviewable order would say something like this:

"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter. This order may be reviewed on the application of either party on or after 1 June 2018."

Or, it might say something like this:

"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support." upon the Claimant remarrying or living in a marriage-like relationshipIn family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage" and "spouse." with another person for a period of three years."

Section 168 of the Family Law Act says this about reviewable orders:

(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for
(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,
(b) the type of family dispute resolutionA phrase referring to a family of processes used for resolving legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. by which the review will take place,
(c) the grounds on which a review will be permitted, and
(d) the matters to be considered for the purposes of a review.

When the review date for an order for spousal support arrives, the payor's obligation to keep making the support payments does not end. At that time, it is usually open to both parties to start negotiations or make an application about spousal support. The payor may wish to have the amount of support reduced or have his or her obligation to pay support ended. The recipient, on the other hand, usually seeks to have the support maintained, and, sometimes, increased. If neither party makes an application to have the issue of spousal support reviewed, the existing order continues to be in effect.

Once one of the parties makes an application for the review of the order for spousal support, the issue is heard by the court as a fresh hearing of the issue, called a hearing de novo, as if the question of spousal support were being determined for the first time. Section 168(2) says what can happen if the review is by way of a court hearing:

(2) On review, a court, on application, may do one or more of the following:
(a) confirm an agreement or order respecting spousal support;
(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;
(c) make an order under section 165.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing.

Changing consent orders for support

A "consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make." 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, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be 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 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:

  1. Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
  2. If the circumstances of the negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute, usually consisting of mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements." of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislationAn act; a statute; a written law made by a government. See "regulations." at the time the agreement was made.
  3. If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

Resources and links

Legislation

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