Difference between revisions of "Changing Orders in Family Matters"

Unless you're talking about property and debt or divorce, there really is no such thing as an absolutely final order 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.

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.

Under [http://canlii.ca/t/7vbw#sec5 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 action started, no matter which province's courts made the original order. [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel or suspend orders for support made under that act.  

*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 which would make an order under the Guidelines inappropriate, and

*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 Statements dealing with income if custody is shared or split.

*Both parties must produce complete Financial Statements 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 over the age of majority.

These new Financial Statements 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.

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

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 [http://canlii.ca/en/ca/laws/regu/sor-97-175/latest/sor-97-175.html#sec14 s. 14] of the [[Child Support Guidelines]], reproduced above, since the last order or if new evidence is discovered since the order was made.  

*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 Statements dealing with income if custody is shared or split.

*Both parties must produce complete Financial Statements 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 over the age of majority.

These new Financial Statements 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.

It used to be the case that a claim for spousal support which 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 someone in financial need.

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 which 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 which, if known at the time of the original order, would have resulted in a different order being made.

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

Once one of the parties make 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:

==Page Resources and links==