Anonymous

Difference between revisions of "Changing Orders in Family Matters"

From Clicklaw Wikibooks

Changing Orders in Family Matters (view source)

Revision as of 14:17, 1 August 2017

33 bytes removed ,  14:17, 1 August 2017
no edit summary
Line 28: Line 28:
<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>
<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.  In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:  
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.  In its 2011 decision of P.(L.M.) v. S.(L.), 2011 SCC 64, the Supreme Court of Canada articulated that:  
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.
Line 90: Line 90:
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 test to vary orders for guardianship, it's the general test that will apply:
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 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>
<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 <span class="noglossary">account</span> in considering the best interests of the child are set out at s. 37(2):
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 <span class="noglossary">account</span> in considering the best interests of the child are set out at s. 37(2):
Line 162: Line 162:
*the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
*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 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 their care,
*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,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*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.
*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#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].
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#Reports and assessments|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====
====Increasing a parenting schedule====
Line 199: Line 199:
This all boils down to these principles:
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.
*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]].
*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 Guidelines 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.
*the court may make an order for support different from the Guidelines 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.
*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.
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.
Line 217: Line 217:
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, 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:
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, 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 their income if the payor is paying child support according to the tables.
*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 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.
*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.
Line 250: Line 250:
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:
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 their income if the payor is paying child support according to the tables.
*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 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.
*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.
Line 282: Line 282:
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, ''[http://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 2003 judgment of the British Columbia Court of Appeal, ''[http://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 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===
===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 ''[http://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 ''[http://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 variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.
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 ''[http://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 ''[http://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 variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.


[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:
[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:
Line 309: Line 309:
====Changing reviewable orders for support====
====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:
"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:


<blockquote>"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."</blockquote>
<blockquote>"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."</blockquote>
Line 325: Line 325:
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>


It is important to note that 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 their 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.
It is important to note that 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:
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:
Line 338: Line 338:
====Changing consent orders for support====
====Changing consent orders for support====


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, 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.
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, 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 ''[http://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:
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 ''[http://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, that is, was there an equality of bargaining power?
#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
Line 346: Line 346:
#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?
#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? Was there sufficient financial disclosure for the party to make an informed decision?  Did the parties have independent legal advice?   
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? Was there sufficient financial disclosure for the party to make an informed decision?  Did the parties have independent legal advice?  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.
 
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==
==Resources and links==
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/36791"