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Agreements after Separation

2013-03-09T05:48:50Z

96.48.61.138:

{{JP Boyd on Family Law TOC}}

A separation agreement is contract which records a settlement of the issues which arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over. Separation agreements can be an effective and inexpensive way of settling things, however the terms of the agreement must be fair and the parties must be able to get along well enough to negotiate the deal and then put it into action it when it's done.

This page will provide a brief introduction to separation agreements, discuss how separation agreements are formed and the legal requirements of separation agreements, and look at the typical subjects of separation agreements in some detail. It will also discuss the effect of reconciliation on separation agreements.

'''JP done. No glossary tags, internal and external links to be added.'''

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative processes;
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process; or,
#give up and just walk away from the mess.

It almost always better to negotiate and settle a dispute than to being a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to Separation Agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, the collaborative settlement processes or arbitration. Settlements reached this way are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started are generally only recorded as separation agreements if they are unusually complicated or if there are concerns about whether a term of the settlement can be put into a court order. Otherwise, a settlement of litigation will be recorded as minutes of settlement or a consent order.

====Minutes of Settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. Even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be: both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signatures of the parties isn't strictly necessary;
#deal with each significant issue in a final manner; and,
#be attached to the draft consent order submitted to the court for its approval.

====Consent Orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of Settlement and Consent Orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are contested, there may not be any evidence of the agreement — as would be provided by minutes of settlement — on which a court can decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other Final Agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt. Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required.

People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples who only need to deal with child support or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Agreements like these can involve more people than a couple. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a Separation Agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The Basic Process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship among themselves (and, hopefully, in consultation with their lawyers as well), and attempt to reach a resolution of each of the legal issues which is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached which represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, check whether anything was left out, and make sure that there are no other issues which need to be discussed and included.

Drafting a separation agreement is something which requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, when the content of the agreement is anything other than completely straightforward, I highly recommend that you hire a lawyer to deal with the matter.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers or to any lawyer, for that matter for advice as to how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#if you are entering into an agreement which will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding;
#you must understand the obligations and rights you have under the agreement; and,
#it stops either party from claiming, later on, that the he or she didn't know what the agreement meant or that the party was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement they will then sign the agreement in the presence of a witness, assuming they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are Negotiating an Agreement and have a Lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for extremely poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying for.

==Formal Requirements of Separation Agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues which are also discussed in the ''Family Law Act'' and the ''Divorce Act''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold it if it is attacked. A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be set out in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness.
*The parties shouldn't be under a legal disability.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law like these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement which obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.
*If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties.

Family law agreements are also subject to other principles, princples that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void, only that term will fail and the rest of the agreement will stand as a valid agreement.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement which attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement which provides that a person will never have to pay child support.

==The Possible Subjects of a Separation Agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''Divorce Act'' for married spouses and by the provincial ''Family Law Act'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child, and have ''parental responsibiities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and Access====

There are two basic types of custody available under the ''Divorce Act'', sole custody and joint custody. Sole custody is fairly rare, and is usually only appropriate where the parties are constantly at each other's throats or where one party expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''Family Law Act'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardain. A parent who never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with a parent who never lived with the child and does not "regularly care" for the child.) Someone who is not a guardian can't be made a guardian by an agreement.

====Parental Responsibilities====

Only a guardian can have parental responsibilities in respect of a child under the ''Family Law Act''. These are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one parent, so that only that parent has responsibility for that issue.

====Parenting Time and Contact====

Parenting time and contact are both about the child's schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous access to the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm." Children's schedules can also take into account:

#the child's birthday;
#Mothers' Day and Fathers' Day;
#the parties' birthdays;
#school and religious holidays;
#extended access when there is a civic holiday or a professional development day at school;
#communication by telephone and computer, including email, instant messaging and video conferencing;
#responsibility for picking up and dropping off the child;
#school events;
#the child's extracurricular activities; and,
#birthdays of the child's friends.

===Child Support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time to the parent who has the child for the most amount of time, to defray the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the federal Child Support Guidelines, which sets out the amount of a parent's child support obligation in table format according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made;
#state the monthly child support to be paid;
#set up a system which requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year;
#provide for a review of child support if the payor's income rises or falls; and,
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal Support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement which provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement which requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

#a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay;
#an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed;
#a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force;
#the termination of support if the recipient enters a new spousal relationship; or,
#the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The Division of Property and Debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''Family Law Act'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement is a form set out in the Supreme Court Family Rules in which each party itemizes his or her income, assets, expenses and debts. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can download a blank Financial Statement in Word format, and an example of what the form looks like when it's filled out, in the _______ .

A separation agreement should deal with how any debts will be dealt with. Separating couples typically pay out family debts by the sale of a shared asset, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible the debt will preserve the other party from any financial consequences of that debt.

===Other Issues===

Arrangements for the care of children, the payment of support and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues which couples may have to deal with, including some that can only be dealt with in separation agreements.

====The Parties' Future Relationship with Each Other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

#not incur debts in the name of the other party;
#not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends and future partners; and,
#not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life Insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed Assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

#any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties;
#the party that didn't disclose the asset will have to give the other party one-half of the asset's value; and,
#the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The Effect of Reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, in ''Sydor v. Sydor''. In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement will be worthless if the relationship breaks down again at some point afterwards.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

FLA, DA

===Links===

* bulleted list of linked external websites referred to in page
public resources

{{JP Boyd on Family Law Navbox|type=chapters}}

Agreements after Separation

2013-03-09T05:46:08Z

96.48.61.138: /* Page Resources and Links */

{{JP Boyd on Family Law TOC}}

A separation agreement is contract which records a settlement of the issues which arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over. Separation agreements can be an effective and inexpensive way of settling things, however the terms of the agreement must be fair and the parties must be able to get along well enough to negotiate the deal and then put it into action it when it's done.

This page will provide a brief introduction to separation agreements, discuss how separation agreements are formed and the legal requirements of separation agreements, and look at the typical subjects of separation agreements in some detail. It will also discuss the effect of reconciliation on separation agreements.

'''DRAFT'''

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative processes;
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process; or,
#give up and just walk away from the mess.

It almost always better to negotiate and settle a dispute than to being a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to Separation Agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, the collaborative settlement processes or arbitration. Settlements reached this way are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started are generally only recorded as separation agreements if they are unusually complicated or if there are concerns about whether a term of the settlement can be put into a court order. Otherwise, a settlement of litigation will be recorded as minutes of settlement or a consent order.

====Minutes of Settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. Even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be: both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signatures of the parties isn't strictly necessary;
#deal with each significant issue in a final manner; and,
#be attached to the draft consent order submitted to the court for its approval.

====Consent Orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of Settlement and Consent Orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are contested, there may not be any evidence of the agreement — as would be provided by minutes of settlement — on which a court can decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other Final Agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt. Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required.

People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples who only need to deal with child support or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Agreements like these can involve more people than a couple. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a Separation Agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The Basic Process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship among themselves (and, hopefully, in consultation with their lawyers as well), and attempt to reach a resolution of each of the legal issues which is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached which represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, check whether anything was left out, and make sure that there are no other issues which need to be discussed and included.

Drafting a separation agreement is something which requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, when the content of the agreement is anything other than completely straightforward, I highly recommend that you hire a lawyer to deal with the matter.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers or to any lawyer, for that matter for advice as to how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#if you are entering into an agreement which will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding;
#you must understand the obligations and rights you have under the agreement; and,
#it stops either party from claiming, later on, that the he or she didn't know what the agreement meant or that the party was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement they will then sign the agreement in the presence of a witness, assuming they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are Negotiating an Agreement and have a Lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for extremely poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying for.

==Formal Requirements of Separation Agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues which are also discussed in the ''Family Law Act'' and the ''Divorce Act''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold it if it is attacked. A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be set out in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness.
*The parties shouldn't be under a legal disability.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law like these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement which obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.
*If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties.

Family law agreements are also subject to other principles, princples that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void, only that term will fail and the rest of the agreement will stand as a valid agreement.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement which attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement which provides that a person will never have to pay child support.

==The Possible Subjects of a Separation Agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''Divorce Act'' for married spouses and by the provincial ''Family Law Act'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child, and have ''parental responsibiities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and Access====

There are two basic types of custody available under the ''Divorce Act'', sole custody and joint custody. Sole custody is fairly rare, and is usually only appropriate where the parties are constantly at each other's throats or where one party expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''Family Law Act'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardain. A parent who never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with a parent who never lived with the child and does not "regularly care" for the child.) Someone who is not a guardian can't be made a guardian by an agreement.

====Parental Responsibilities====

Only a guardian can have parental responsibilities in respect of a child under the ''Family Law Act''. These are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one parent, so that only that parent has responsibility for that issue.

====Parenting Time and Contact====

Parenting time and contact are both about the child's schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous access to the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm." Children's schedules can also take into account:

#the child's birthday;
#Mothers' Day and Fathers' Day;
#the parties' birthdays;
#school and religious holidays;
#extended access when there is a civic holiday or a professional development day at school;
#communication by telephone and computer, including email, instant messaging and video conferencing;
#responsibility for picking up and dropping off the child;
#school events;
#the child's extracurricular activities; and,
#birthdays of the child's friends.

===Child Support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time to the parent who has the child for the most amount of time, to defray the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the federal Child Support Guidelines, which sets out the amount of a parent's child support obligation in table format according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made;
#state the monthly child support to be paid;
#set up a system which requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year;
#provide for a review of child support if the payor's income rises or falls; and,
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal Support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement which provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement which requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

#a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay;
#an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed;
#a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force;
#the termination of support if the recipient enters a new spousal relationship; or,
#the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The Division of Property and Debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''Family Law Act'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement is a form set out in the Supreme Court Family Rules in which each party itemizes his or her income, assets, expenses and debts. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can download a blank Financial Statement in Word format, and an example of what the form looks like when it's filled out, in the _______ .

A separation agreement should deal with how any debts will be dealt with. Separating couples typically pay out family debts by the sale of a shared asset, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible the debt will preserve the other party from any financial consequences of that debt.

===Other Issues===

Arrangements for the care of children, the payment of support and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues which couples may have to deal with, including some that can only be dealt with in separation agreements.

====The Parties' Future Relationship with Each Other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

#not incur debts in the name of the other party;
#not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends and future partners; and,
#not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life Insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed Assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

#any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties;
#the party that didn't disclose the asset will have to give the other party one-half of the asset's value; and,
#the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The Effect of Reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, in ''Sydor v. Sydor''. In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement will be worthless if the relationship breaks down again at some point afterwards.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

FLA, DA

===Links===

* bulleted list of linked external websites referred to in page
public resources

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Agreements after Separation

2013-03-09T05:45:10Z

96.48.61.138: /* The Effect of Reconciliation */

{{JP Boyd on Family Law TOC}}

A separation agreement is contract which records a settlement of the issues which arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over. Separation agreements can be an effective and inexpensive way of settling things, however the terms of the agreement must be fair and the parties must be able to get along well enough to negotiate the deal and then put it into action it when it's done.

This page will provide a brief introduction to separation agreements, discuss how separation agreements are formed and the legal requirements of separation agreements, and look at the typical subjects of separation agreements in some detail. It will also discuss the effect of reconciliation on separation agreements.

'''DRAFT'''

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative processes;
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process; or,
#give up and just walk away from the mess.

It almost always better to negotiate and settle a dispute than to being a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to Separation Agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, the collaborative settlement processes or arbitration. Settlements reached this way are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started are generally only recorded as separation agreements if they are unusually complicated or if there are concerns about whether a term of the settlement can be put into a court order. Otherwise, a settlement of litigation will be recorded as minutes of settlement or a consent order.

====Minutes of Settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. Even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be: both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signatures of the parties isn't strictly necessary;
#deal with each significant issue in a final manner; and,
#be attached to the draft consent order submitted to the court for its approval.

====Consent Orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of Settlement and Consent Orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are contested, there may not be any evidence of the agreement — as would be provided by minutes of settlement — on which a court can decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other Final Agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt. Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required.

People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples who only need to deal with child support or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Agreements like these can involve more people than a couple. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a Separation Agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The Basic Process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship among themselves (and, hopefully, in consultation with their lawyers as well), and attempt to reach a resolution of each of the legal issues which is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached which represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, check whether anything was left out, and make sure that there are no other issues which need to be discussed and included.

Drafting a separation agreement is something which requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, when the content of the agreement is anything other than completely straightforward, I highly recommend that you hire a lawyer to deal with the matter.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers or to any lawyer, for that matter for advice as to how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#if you are entering into an agreement which will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding;
#you must understand the obligations and rights you have under the agreement; and,
#it stops either party from claiming, later on, that the he or she didn't know what the agreement meant or that the party was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement they will then sign the agreement in the presence of a witness, assuming they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are Negotiating an Agreement and have a Lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for extremely poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying for.

==Formal Requirements of Separation Agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues which are also discussed in the ''Family Law Act'' and the ''Divorce Act''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold it if it is attacked. A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be set out in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness.
*The parties shouldn't be under a legal disability.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law like these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement which obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.
*If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties.

Family law agreements are also subject to other principles, princples that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void, only that term will fail and the rest of the agreement will stand as a valid agreement.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement which attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement which provides that a person will never have to pay child support.

==The Possible Subjects of a Separation Agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''Divorce Act'' for married spouses and by the provincial ''Family Law Act'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child, and have ''parental responsibiities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and Access====

There are two basic types of custody available under the ''Divorce Act'', sole custody and joint custody. Sole custody is fairly rare, and is usually only appropriate where the parties are constantly at each other's throats or where one party expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''Family Law Act'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardain. A parent who never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with a parent who never lived with the child and does not "regularly care" for the child.) Someone who is not a guardian can't be made a guardian by an agreement.

====Parental Responsibilities====

Only a guardian can have parental responsibilities in respect of a child under the ''Family Law Act''. These are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one parent, so that only that parent has responsibility for that issue.

====Parenting Time and Contact====

Parenting time and contact are both about the child's schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous access to the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm." Children's schedules can also take into account:

#the child's birthday;
#Mothers' Day and Fathers' Day;
#the parties' birthdays;
#school and religious holidays;
#extended access when there is a civic holiday or a professional development day at school;
#communication by telephone and computer, including email, instant messaging and video conferencing;
#responsibility for picking up and dropping off the child;
#school events;
#the child's extracurricular activities; and,
#birthdays of the child's friends.

===Child Support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time to the parent who has the child for the most amount of time, to defray the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the federal Child Support Guidelines, which sets out the amount of a parent's child support obligation in table format according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made;
#state the monthly child support to be paid;
#set up a system which requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year;
#provide for a review of child support if the payor's income rises or falls; and,
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal Support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement which provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement which requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

#a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay;
#an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed;
#a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force;
#the termination of support if the recipient enters a new spousal relationship; or,
#the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The Division of Property and Debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''Family Law Act'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement is a form set out in the Supreme Court Family Rules in which each party itemizes his or her income, assets, expenses and debts. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can download a blank Financial Statement in Word format, and an example of what the form looks like when it's filled out, in the _______ .

A separation agreement should deal with how any debts will be dealt with. Separating couples typically pay out family debts by the sale of a shared asset, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible the debt will preserve the other party from any financial consequences of that debt.

===Other Issues===

Arrangements for the care of children, the payment of support and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues which couples may have to deal with, including some that can only be dealt with in separation agreements.

====The Parties' Future Relationship with Each Other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

#not incur debts in the name of the other party;
#not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends and future partners; and,
#not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life Insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed Assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

#any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties;
#the party that didn't disclose the asset will have to give the other party one-half of the asset's value; and,
#the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The Effect of Reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, in ''Sydor v. Sydor''. In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.

The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement will be worthless if the relationship breaks down again at some point afterwards.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Agreements after Separation

2013-03-09T05:39:27Z

96.48.61.138: /* The Possible Subjects of a Separation Agreement */

{{JP Boyd on Family Law TOC}}

A separation agreement is contract which records a settlement of the issues which arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over. Separation agreements can be an effective and inexpensive way of settling things, however the terms of the agreement must be fair and the parties must be able to get along well enough to negotiate the deal and then put it into action it when it's done.

This page will provide a brief introduction to separation agreements, discuss how separation agreements are formed and the legal requirements of separation agreements, and look at the typical subjects of separation agreements in some detail. It will also discuss the effect of reconciliation on separation agreements.

'''DRAFT'''

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

#settle the matters between them out of court through negotiation or mediation, or through some other process like arbitration or collaborative processes;
#have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process; or,
#give up and just walk away from the mess.

It almost always better to negotiate and settle a dispute than to being a court proceeding and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a court proceeding has started. Typically a settlement reached before a proceeding has begun is put into the form of a separation agreement. Settlements reached after the start of a proceeding can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a ''consent order'', an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple have to address, from who will keep the cats, to how the mortgage will be paid, to how the children's post-secondary education costs will be handled. They also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

==Alternatives to Separation Agreements==

Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, the collaborative settlement processes or arbitration. Settlements reached this way are almost always recorded in the form of a separation agreement.

Settlements reached after a proceeding has started are generally only recorded as separation agreements if they are unusually complicated or if there are concerns about whether a term of the settlement can be put into a court order. Otherwise, a settlement of litigation will be recorded as minutes of settlement or a consent order.

====Minutes of Settlement====

Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. Even though they lack the same fine-tuning and detail, minutes of settlement are just as binding upon the parties as a separation agreement would be: both are contracts and can be enforced as such.

Minutes of settlement should:

#be signed by both lawyers and by both parties, although the signatures of the parties isn't strictly necessary;
#deal with each significant issue in a final manner; and,
#be attached to the draft consent order submitted to the court for its approval.

====Consent Orders====

A consent order is an order that both parties agree that a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of Settlement and Consent Orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are contested, there may not be any evidence of the agreement — as would be provided by minutes of settlement — on which a court can decide the matter.

Consent orders have unique advantages of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and because such orders are almost impossible to appeal.

===Other Final Agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt. Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required.

People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples who only need to deal with child support or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Agreements like these can involve more people than a couple. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Entering into a Separation Agreement==

A separation agreement can be negotiated and signed at any time after a married or unmarried relationship has broken down. A separation agreement can be signed after a court proceeding has been started or before one has even been considered.

===The Basic Process===

The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship among themselves (and, hopefully, in consultation with their lawyers as well), and attempt to reach a resolution of each of the legal issues which is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached.

The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached which represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, check whether anything was left out, and make sure that there are no other issues which need to be discussed and included.

Drafting a separation agreement is something which requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, when the content of the agreement is anything other than completely straightforward, I highly recommend that you hire a lawyer to deal with the matter.

Once both parties are content with the text of the agreement, they must each take the agreement to their respective lawyers or to any lawyer, for that matter for advice as to how the agreement affects their legal rights and the options they may have open to them if they don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons:

#if you are entering into an agreement which will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding;
#you must understand the obligations and rights you have under the agreement; and,
#it stops either party from claiming, later on, that the he or she didn't know what the agreement meant or that the party was at a disadvantage because the other party's lawyer drafted the agreement.

After each party has had independent legal advice about the agreement they will then sign the agreement in the presence of a witness, assuming they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a ''Certificate of Independent Legal Advice''.

Normally, four separate original copies of a separation agreement are executed. This is so that the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are Negotiating an Agreement and have a Lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you want and can arrive at any settlement you wish, be warned that you may find yourself settling for extremely poor terms compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying for.

==Formal Requirements of Separation Agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord or the company from which you lease your car. On the other hand, it's a special kind of agreement, different from commercial contracts, because it deals with family law issues which are also discussed in the ''Family Law Act'' and the ''Divorce Act''. As a result, the law dealing with separation agreements is a blend of legislation, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, the agreement must be enforceable and it must be able withstand a challenge in court, that is, it must be drafted in such a way and contain terms that are reasonably fair such that a court will uphold it if it is attacked. A separation agreement must therefore conform to certain basic rules, including these:

*A separation agreement must be set out in writing.
*The agreement must be signed by each party, and should be signed in the presence of a witness.
*The parties shouldn't be under a legal disability.
*The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

In addition to these simple formalities of a proper family law agreement, you might want to think about certain other principles of contract law like these:

*The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else for that matter.
*Both parties must make full and complete disclosure of their circumstances going into the agreement.
*The parties cannot make an illegal bargain, that is, they can't make an agreement which obliges them to do something against the law.
*Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreement that are vague may be interpreted in favour of the party who didn't have the lawyer.
*The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.
*If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement will stop being in effect. The remainder of the agreement will continue to be valid and binding on the parties.

Family law agreements are also subject to other principles, princples that don't necessarily apply to commercial contracts:

*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*If one term of a separation agreement is void, only that term will fail and the rest of the agreement will stand as a valid agreement.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
*While the parties can agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely if ever uphold an agreement which attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not consider itself bound by an agreement which provides that a person will never have to pay child support.

==The Possible Subjects of a Separation Agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation are covered by the federal ''Divorce Act'' for married spouses and by the provincial ''Family Law Act'' for married spouses, unmarried spouses and other unmarried couples, and other people who have an interest in the care of a child.

The ''Divorce Act'' uses some pretty old fashioned language to talk about children, ''custody'' and ''access''. The ''Family Law Act'' talks about people who are the ''guardians'' of a child, and have ''parental responsibiities'' and ''parenting time'', and people who are not guardians and have ''contact''.

====Custody and Access====

There are two basic types of custody available under the ''Divorce Act'', sole custody and joint custody. Sole custody is fairly rare, and is usually only appropriate where the parties are constantly at each other's throats or where one party expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

====Guardianship====

Under s. 39(1) of the ''Family Law Act'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardain. A parent who never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.

Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with a parent who never lived with the child and does not "regularly care" for the child.) Someone who is not a guardian can't be made a guardian by an agreement.

====Parental Responsibilities====

Only a guardian can have parental responsibilities in respect of a child under the ''Family Law Act''. These are listed at s. 41:

<blockquote><tt>(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;</tt></blockquote>
<blockquote><tt>(b) making decisions respecting where the child will reside;</tt></blockquote>
<blockquote><tt>(c) making decisions respecting with whom the child will live and associate;</tt></blockquote>
<blockquote><tt>(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;</tt></blockquote>
<blockquote><tt>(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;</tt></blockquote>
<blockquote><tt>(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;</tt></blockquote>
<blockquote><tt>(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;</tt></blockquote>
<blockquote><tt>(h) giving, refusing or withdrawing consent for the child, if consent is required;</tt></blockquote>
<blockquote><tt>(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;</tt></blockquote>
<blockquote><tt>(j) requesting and receiving from third parties health, education or other information respecting the child;</tt></blockquote>
<blockquote><tt>(k) subject to any applicable provincial legislation,</tt></blockquote>
<blockquote><blockquote><tt>(i) starting, defending, compromising or settling any proceeding relating to the child, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) identifying, advancing and protecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(l) exercising any other responsibilities reasonably necessary to nurture the child's development.</tt></blockquote>

Guardians can share one or more of these parental responsibilities, or one or more parental responsibilities can be allocated just to one parent, so that only that parent has responsibility for that issue.

====Parenting Time and Contact====

Parenting time and contact are both about the child's schedule, although parenting time is about a bit more than just the child's schedule. Only guardians have parenting time; people who aren't guardians have contact with a child.

The terms of a child's schedule can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous access to the child."

If there has been a history of difficulty exercising parenting time or contact, or there is even a smidgen of conflict between the parties, it can be important to spell out the child's schedule in more detail to avoid future arguments. The terms of the child's schedule usually spell out when the party will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm." Children's schedules can also take into account:

#the child's birthday;
#Mothers' Day and Fathers' Day;
#the parties' birthdays;
#school and religious holidays;
#extended access when there is a civic holiday or a professional development day at school;
#communication by telephone and computer, including email, instant messaging and video conferencing;
#responsibility for picking up and dropping off the child;
#school events;
#the child's extracurricular activities; and,
#birthdays of the child's friends.

===Child Support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time to the parent who has the child for the most amount of time, to defray the day-to-day living expenses of the child. The amount of child support that is paid is almost always dealt with by referring to the federal Child Support Guidelines, which sets out the amount of a parent's child support obligation in table format according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

#state the income of each parent at the time the agreement is made;
#state the monthly child support to be paid;
#set up a system which requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year;
#provide for a review of child support if the payor's income rises or falls; and,
#provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.

The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the ''payor'', has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

===Spousal Support===

Spousal support is paid by one spouse to the other to help cover that person's day-to-day living expenses. A separation agreement which provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support.

Typically, a separation agreement which requires spousal support to be paid will include some means of limiting the length of time for which support will be payable. Such terms might include:

#a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay;
#an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed;
#a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force;
#the termination of support if the recipient enters a new spousal relationship; or,
#the payment of support in a single, lump sum.

In some situations, of course, permanent support may be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient because of illness, for example.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you need to be pretty confident that the agreement is fair as it may be very difficult to get support later on if your personal circumstances change.

===The Division of Property and Debt===

The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''Family Law Act'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.

When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement is a form set out in the Supreme Court Family Rules in which each party itemizes his or her income, assets, expenses and debts. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can download a blank Financial Statement in Word format, and an example of what the form looks like when it's filled out, in the _______ .

A separation agreement should deal with how any debts will be dealt with. Separating couples typically pay out family debts by the sale of a shared asset, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible the debt will preserve the other party from any financial consequences of that debt.

===Other Issues===

Arrangements for the care of children, the payment of support and the division of family property and family debts are the most common issues that come up in family law. There are a whole host of other issues which couples may have to deal with, including some that can only be dealt with in separation agreements.

====The Parties' Future Relationship with Each Other====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

#not incur debts in the name of the other party;
#not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends and future partners; and,
#not molest, harass or annoy the other party.

Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile, and that it will not cease to be in effect simply because of the reconciliation.

====Life Insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed Assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

#any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties;
#the party that didn't disclose the asset will have to give the other party one-half of the asset's value; and,
#the party that didn't disclose the asset will have to pay the expenses the other party incurred in finding the asset, plus a financial penalty.

==The Effect of Reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resumed married life. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, in Sydor v. Sydor. In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from the marriage.

The upshot of all this is that if you believe you and your partner might get back together at some point in the future and want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement will be worthless if the relationship breaks down again at some point afterwards.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

{{JP Boyd on Family Law Navbox|type=chapters}}

Family Law Agreements

2013-03-08T13:28:48Z

96.48.61.138: /* The Elements of a Family Law Agreement */

{{JP Boyd on Family Law TOC}}

A family law agreement usually a cohabitiation agreement, a marriage agreement or a separation agreement is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed.

This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

'''DRAFT UNEDITED'''

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also known as a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The weird thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that might happen in five years or in twenty years, or it may never happen. It can be very difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses and unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts which describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' just dealing with the care of the children when their relationship has ended.

It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the order and make an order on different terms.

The ''Family Law Act'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214, the court may:

#set aside part of an agreement, without changing the rest of the agreement;
#incorporate all or part of an agreement into an order; or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with your application.

==The Role of Family Law Agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute since they can be tailored to suit the particular circumstances and needs of each party, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and Cohabitation Agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes address how things will be handled during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the ''Divorce Act'' or the ''Family Law Act'' if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the Relationship====

The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing purple shirts on Thursdays, to doing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for?
*How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown.

====After the Relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation Agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is executed; in fact, when a couple is married it's usually best to deal with the separation agreement before applying for a divorce just in case an agreement can't be reached.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with.

Separation agreements are binding from the moment they are signed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement may continue to be legally binding on them.

==The Elements of a Family Law Agreement==

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by and that the court can and will enforce if a party doesn't live up to his or her obligations. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a certain way and include certain terms.

===Negotiating the Terms of an Agreement===

Family law agreements are about really important things like where the children will live, who will pay support to whom and how the parties will divide their property. As a result, the terms of the agreement are almost always the result of lots of talking and negotiating. It is critical that:

#each person has all of the information that is necessary to figure out what's a good deal and what's a bad deal;
#each person understands their legal rights and obligations to know what's a good deal and what's bad deal;
#each person is able express his or her views and contribute to shaping the agreement; and,
#there is no pressure to reach an agreement beyond the importance of reaching a reasonable agreement and saving money on legal fees and court costs.

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. The people negotiating the agreement must be able to understand the agreement, be capable of agreeing to it and agree to it voluntarily. This is what s. 93(3) of the ''Family Law Act'' says about agreements for the division of property and debt:

<blockquote><tt>(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement ... only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:</tt></blockquote>
<blockquote><blockquote><tt>(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) a spouse did not understand the nature or consequences of the agreement;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.</tt></blockquote></blockquote>

This is fairly straightforward:

#you have to make full disclosure of your income, your expenses, your assets and your debts, and any other information that is important to the agreement;
#you can't exploit the other party's weaknesses to get a good deal for yourself;
#you have to make sure that the other party understands exactly what the agreement means and how it will affect his or her life, both now and in the future; and,
#you can't force or pressure someone to sign the agreement, you can't cheat someone into signing the agreement and the agreement must be reasonable.

Although s. 93 is about property, s. 164(3) says the same thing about agreements for spousal support and I think that this is a pretty reasonable standard to set for all other family law agreements. If you don't want the court to throw out your agreement, you've got to take the time to do it right, and you've got to be fair and not take advantage of the other party.

The legal formalities common to all family law agreements are these:

*The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
*The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
*The parties can't be under any sort of legal disability such as insanity.
*The parties must both sign the agreement of their own free will, without any pressure by the other party.
*The agreement must be properly executed, preferably in the presence of witnesses.

As a general rule, each party who enters into a family law agreement should get ''independent legal advice'', advice from their own lawyer, about:

#what the agreement means;
#what rights and obligations the agreement gives each party;
#how the agreement does or doesn't limit the other legal remedies that might be available;
#how the agreement may affect each party over the short- and long-term; and,
#the options and remedies that would have been available if everyone had decided to go to court instead of settling things with an agreement.

Each party should find their own separate lawyer and meet with the lawyer to review the agreement before it is signed. Independent legal advice is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact him or her. If you really want to make sure that your agreement will stand the test of time, you've got to make sure that you and the other party have both seen a lawyer about the agreement!

===Drafting an Agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language doesn't mean that an agreement using different wording will be set aside because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair and continues to be fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try LawDepot.com, an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at your local courthouse law library; one of the very best is the ''Family Law Agreements Manual'' published by the Continuing Legal Education Society of British Columbia.

The following are the typical elements of a family agreement, using the example of John and Jane Doe, married spouses who are entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The Introduction====

The introduction to an agreement, also known as the ''exordium'', is the portion of an agreement that identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

<blockquote><tt>THIS SEPARATION AGREEMENT is made on this the 1st day of March, 2013.</tt></blockquote>
<blockquote><tt>BETWEEN:</tt></blockquote>
<blockquote><blockquote><tt>Jane Doe 
of 123 King Street, Anytown, British Columbia 
("Jane")</tt></blockquote></blockquote>

<blockquote><tt>AND:</tt></blockquote>
<blockquote><blockquote><tt>John Doe 
of 456 Queen Street, Anytown, British Columbia 
("John")</tt></blockquote></blockquote>

====The Recitals====

These are paragraphs that set out the facts on which the agreement is based, and include the basic facts of the relationship, the names and birth dates of any children, as well as the assets each party owns and their respective incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a stranger why the parties entered not just into an agreement but this particular agreement. As a result, the recitals are also promises of a sort, in the sense that the parties promise that the facts are true.

It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, this section typically looks like this:

WHEREAS:

A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia.

B. There are two children of the marriage, namely

i) Sally Doe, born on March 5th, 1995, and
ii) Randy Doe, born on April 11th, 1997
(together, "the Children").
C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.

D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.

E. Jane and John have lived separately and apart since December 25th, 2010 (the "Date of Separation"), when Jane left the family home.

F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm.

...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them.

Essentially, every fact which is relevant to the agreement should be put into the recitals to the agreement.

====The Operative Clauses====

These paragraphs set out the meat of the matter; they form the essential terms of the agreement and set out what each party's rights and obligations are. In the case of a separation agreement, this section might look like this:

IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

1. Jane and John shall live separate and apart and be free from the control of each other.

2. Neither party shall directly or indirectly molest, annoy or harass the other or his or her friends, relatives and associates.

3. Except as is specifically provided in this Agreement, Jane and John shall each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.

THE CHILDREN

4. Jane and John shall share the permanent joint custody and joint guardianship of the Children, and John shall have the Children's primary residence.

5. Jane shall have access to the children every Wednesday night, from the end of school until 8:00pm, and on every other weekend from the end of school until the following Sunday at 8:00pm.

6. Jane shall have additional access to the children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.

CHILD SUPPORT

7. Jane shall pay child support to John in the amount of $492 on the first day of each and every month, continuing for so long as the Children remain "children of the marriage" as defined by the Divorce Act.

...and so forth. Other terms might deal with specific assets, like a car or the family home, the sharing of the children's expenses, who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce, which laws will govern the interpretation of the agreement, and so on.

====The Signatures====
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other infomation, typically his or her full name, address and occupation.

IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011.

SIGNED, SEALED AND )
DELIVERED by Jane )
in the presence of: )
)
___________________ ) ___________________
Signature ) JANE DOE
___________________ )
Name )
___________________ )
Occupation )
___________________ )
Address )
___________________ )

...which would be repeated for John's signature and that of John's witness.

Note that the witnesses are not parties to the agreement and the agreement cannot be enforced against the witnesses. The signature of the witness simply says that he or she saw the particular party sign the agreement in case a party ever denies signing the agreement.

==Negotiating Considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Horton's. This is fine, providing everyone is relatively friendly and the parties are approaching their negotiations from a level footing. The court will respect the agreements that negotiations like these produce on the basis that people are free to make their own bargains and to contract to whatever they like.

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court held that family law agreements should not be considered with exactly the same standards that are applied to ordinariy commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, Leopold v. Leopold:

"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."
In a 2009 case, Rick v. Brandsema, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

exploiting a party's emotional or psychological vulnerability;
influence over a party through dominance and oppression;
control over the family finances;
influence over the children's allegiances; or,
access to or control over the release of financial information;
Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

Independent legal advice: Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the same lawyers witness the parties' signatures on the agreement, and execute certificates of independent legal advice.
Respect vulnerabilities: Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
Make full disclosure: Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewellry appraisals and so on.
Never lie: Intentionally misleading someone about a value, a debt, past and future income expectations or any other relevant factor will always undermine the strength of an agreement. Be scruplously honest and transparent at all times.
Know the law: The Divorce Act and the Family Relations Act say when and why spousal support and child support should be paid. The Divorce Act talks about how much time children should have with their parents. For married couples, the Family Relations Act talks about how assets should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

==Drafting Considerations==

First of all, it is always best to have a qualified professional prepare any sort of agreement. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as:

income tax consequences;
the transfer of property; or,
liabilities to third-parties and creditors.
This segment discusses a few things you might want to keep in mind for those times when hiring a lawyer is not practical or possible.

===Don't Use "Legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" have a particular legal meaning, in this case first-generation, directly-descended heirs, that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as Clear as Possible===

Ask yourself these questions:

What would a complete stranger think of your agreement?
Would the stranger be able to understand what you mean?
Are any parts of the agreement vague or capable of more than one meaning?
Do you understand what the agreement means?
If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid Agreeing to Agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the Loose Ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the proceeds be dealt with? These things should all be specified, where at all possible.

===Be Realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are things that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time.

===Use Sample Clauses with Caution===

Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

{{JP Boyd on Family Law Navbox|type=chapters}}

Family Law Agreements

2013-03-08T12:57:17Z

96.48.61.138: /* Separation Agreements */

{{JP Boyd on Family Law TOC}}

A family law agreement usually a cohabitiation agreement, a marriage agreement or a separation agreement is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed.

This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

'''DRAFT UNEDITED'''

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also known as a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The weird thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that might happen in five years or in twenty years, or it may never happen. It can be very difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses and unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts which describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' just dealing with the care of the children when their relationship has ended.

It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the order and make an order on different terms.

The ''Family Law Act'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214, the court may:

#set aside part of an agreement, without changing the rest of the agreement;
#incorporate all or part of an agreement into an order; or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with your application.

==The Role of Family Law Agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute since they can be tailored to suit the particular circumstances and needs of each party, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and Cohabitation Agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes address how things will be handled during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the ''Divorce Act'' or the ''Family Law Act'' if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the Relationship====

The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing purple shirts on Thursdays, to doing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for?
*How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown.

====After the Relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation Agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is executed; in fact, when a couple is married it's usually best to deal with the separation agreement before applying for a divorce just in case an agreement can't be reached.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is a problem for a couple, even things that the court would not ordinarily deal with or be able to deal with.

Separation agreements are binding from the moment they are signed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement may continue to be legally binding on them.

==The Elements of a Family Law Agreement==

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a specific way and include specific terms.

===Entering into an Agreement===

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. In addition, the people entering into the agreement must be able to understand the agreement, be capable of entering into it and enter into it voluntarily. This is what s. 93(3) says on this issue:

STOPPED

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

The legal formalities common to all family agreements are these:

The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
The parties must be over the age of majority, and cannot be under any other form of legal disability such as insanity.
The parties must both enter into the agreement of their own free will, without any duress or coercion by the other party.
The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
The agreement must be properly executed, preferably in the presence of witnesses.
As a general rule, each party who enters into a family law agreement should get independent legal advice about:

what the agreement means;
what rights and obligations the agreement gives each party;
how the agreement does or does not limit the other legal remedies each party may have outside the agreement;
how the agreement may affect each party over the short- and long-term; and,
the options and remedies that would have been available had the parties chosen to litigate the issues settled in the agreement.
Each party should find their own separate lawyer and meet with the lawyer to review the draft agreement. This process is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact on him or her.

===Drafting an Agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language does not mean that an agreement using different wording will not be valid because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try LawDepot.com, an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at your local courthouse law library; one of the very best is the Family Law Agreements Manual published by the Continuing Legal Education Society.

The following are the typical elements of a family agreement, using the example of John and Jane Doe, a fictitious married couple entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The Introduction====

Also known as the exordium, this portion of an agreement identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

THIS SEPARATION AGREEMENT is made on this the 1st day of January, 2011.

BETWEEN:
Jane Doe
of 123 King Street, Anytown, British Columbia
("Jane")

AND
John Doe
of 456 Queen Street, Anytown, British Columbia
("John")

====The Recitals====

These are paragraphs that set out the facts on which the agreement is based, and include the basic facts of the relationship, the names and birth dates of any children, as well as the assets each party owns and their respective incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a stranger why the parties entered not just into an agreement but this particular agreement. As a result, the recitals are also promises of a sort, in the sense that the parties promise that the facts are true.

It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, this section typically looks like this:

WHEREAS:

A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia.

B. There are two children of the marriage, namely

i) Sally Doe, born on March 5th, 1995, and
ii) Randy Doe, born on April 11th, 1997
(together, "the Children").
C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.

D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.

E. Jane and John have lived separately and apart since December 25th, 2010 (the "Date of Separation"), when Jane left the family home.

F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm.

...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them.

Essentially, every fact which is relevant to the agreement should be put into the recitals to the agreement.

====The Operative Clauses====

These paragraphs set out the meat of the matter; they form the essential terms of the agreement and set out what each party's rights and obligations are. In the case of a separation agreement, this section might look like this:

IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

1. Jane and John shall live separate and apart and be free from the control of each other.

2. Neither party shall directly or indirectly molest, annoy or harass the other or his or her friends, relatives and associates.

3. Except as is specifically provided in this Agreement, Jane and John shall each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.

THE CHILDREN

4. Jane and John shall share the permanent joint custody and joint guardianship of the Children, and John shall have the Children's primary residence.

5. Jane shall have access to the children every Wednesday night, from the end of school until 8:00pm, and on every other weekend from the end of school until the following Sunday at 8:00pm.

6. Jane shall have additional access to the children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.

CHILD SUPPORT

7. Jane shall pay child support to John in the amount of $492 on the first day of each and every month, continuing for so long as the Children remain "children of the marriage" as defined by the Divorce Act.

...and so forth. Other terms might deal with specific assets, like a car or the family home, the sharing of the children's expenses, who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce, which laws will govern the interpretation of the agreement, and so on.

====The Signatures====
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other infomation, typically his or her full name, address and occupation.

IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011.

SIGNED, SEALED AND )
DELIVERED by Jane )
in the presence of: )
)
___________________ ) ___________________
Signature ) JANE DOE
___________________ )
Name )
___________________ )
Occupation )
___________________ )
Address )
___________________ )

...which would be repeated for John's signature and that of John's witness.

Note that the witnesses are not parties to the agreement and the agreement cannot be enforced against the witnesses. The signature of the witness simply says that he or she saw the particular party sign the agreement in case a party ever denies signing the agreement.

==Negotiating Considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Horton's. This is fine, providing everyone is relatively friendly and the parties are approaching their negotiations from a level footing. The court will respect the agreements that negotiations like these produce on the basis that people are free to make their own bargains and to contract to whatever they like.

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court held that family law agreements should not be considered with exactly the same standards that are applied to ordinariy commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, Leopold v. Leopold:

"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."
In a 2009 case, Rick v. Brandsema, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

exploiting a party's emotional or psychological vulnerability;
influence over a party through dominance and oppression;
control over the family finances;
influence over the children's allegiances; or,
access to or control over the release of financial information;
Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

Independent legal advice: Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the same lawyers witness the parties' signatures on the agreement, and execute certificates of independent legal advice.
Respect vulnerabilities: Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
Make full disclosure: Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewellry appraisals and so on.
Never lie: Intentionally misleading someone about a value, a debt, past and future income expectations or any other relevant factor will always undermine the strength of an agreement. Be scruplously honest and transparent at all times.
Know the law: The Divorce Act and the Family Relations Act say when and why spousal support and child support should be paid. The Divorce Act talks about how much time children should have with their parents. For married couples, the Family Relations Act talks about how assets should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

==Drafting Considerations==

First of all, it is always best to have a qualified professional prepare any sort of agreement. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as:

income tax consequences;
the transfer of property; or,
liabilities to third-parties and creditors.
This segment discusses a few things you might want to keep in mind for those times when hiring a lawyer is not practical or possible.

===Don't Use "Legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" have a particular legal meaning, in this case first-generation, directly-descended heirs, that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as Clear as Possible===

Ask yourself these questions:

What would a complete stranger think of your agreement?
Would the stranger be able to understand what you mean?
Are any parts of the agreement vague or capable of more than one meaning?
Do you understand what the agreement means?
If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid Agreeing to Agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the Loose Ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the proceeds be dealt with? These things should all be specified, where at all possible.

===Be Realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are things that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time.

===Use Sample Clauses with Caution===

Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

{{JP Boyd on Family Law Navbox|type=chapters}}

Family Law Agreements

2013-03-08T05:38:20Z

96.48.61.138: /* Introduction */

{{JP Boyd on Family Law TOC}}

A family law agreement usually a cohabitiation agreement, a marriage agreement or a separation agreement is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed.

This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

'''DRAFT UNEDITED'''

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also known as a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The weird thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that might happen in five years or in twenty years, or it may never happen. It can be very difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses and unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts which describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' just dealing with the care of the children when their relationship has ended.

It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the order and make an order on different terms.

The ''Family Law Act'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214, the court may:

#set aside part of an agreement, without changing the rest of the agreement;
#incorporate all or part of an agreement into an order; or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with your application.

==The Role of Family Law Agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute since they can be tailored to suit the particular circumstances and needs of each party, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and Cohabitation Agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes address how things will be handled during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the ''Divorce Act'' or the ''Family Law Act'' if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the Relationship====

The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing purple shirts on Thursdays, to doing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for?
*How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown.

====After the Relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation Agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is executed; in fact, when a couple is married it's usually best to deal with the separation agreement before applying for a divorce just in case an agreement can't be reached.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is an issue for a couple, even things that the court would not ordinarily deal with or be capable of dealing with.

Separation agreements are binding from the moment they are signed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement may continue to be legally binding on them.

==The Elements of a Family Law Agreement==

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a specific way and include specific terms.

===Entering into an Agreement===

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. In addition, the people entering into the agreement must be able to understand the agreement, be capable of entering into it and enter into it voluntarily. This is what s. 93(3) says on this issue:

STOPPED

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

The legal formalities common to all family agreements are these:

The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
The parties must be over the age of majority, and cannot be under any other form of legal disability such as insanity.
The parties must both enter into the agreement of their own free will, without any duress or coercion by the other party.
The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
The agreement must be properly executed, preferably in the presence of witnesses.
As a general rule, each party who enters into a family law agreement should get independent legal advice about:

what the agreement means;
what rights and obligations the agreement gives each party;
how the agreement does or does not limit the other legal remedies each party may have outside the agreement;
how the agreement may affect each party over the short- and long-term; and,
the options and remedies that would have been available had the parties chosen to litigate the issues settled in the agreement.
Each party should find their own separate lawyer and meet with the lawyer to review the draft agreement. This process is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact on him or her.

===Drafting an Agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language does not mean that an agreement using different wording will not be valid because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try LawDepot.com, an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at your local courthouse law library; one of the very best is the Family Law Agreements Manual published by the Continuing Legal Education Society.

The following are the typical elements of a family agreement, using the example of John and Jane Doe, a fictitious married couple entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The Introduction====

Also known as the exordium, this portion of an agreement identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

THIS SEPARATION AGREEMENT is made on this the 1st day of January, 2011.

BETWEEN:
Jane Doe
of 123 King Street, Anytown, British Columbia
("Jane")

AND
John Doe
of 456 Queen Street, Anytown, British Columbia
("John")

====The Recitals====

These are paragraphs that set out the facts on which the agreement is based, and include the basic facts of the relationship, the names and birth dates of any children, as well as the assets each party owns and their respective incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a stranger why the parties entered not just into an agreement but this particular agreement. As a result, the recitals are also promises of a sort, in the sense that the parties promise that the facts are true.

It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, this section typically looks like this:

WHEREAS:

A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia.

B. There are two children of the marriage, namely

i) Sally Doe, born on March 5th, 1995, and
ii) Randy Doe, born on April 11th, 1997
(together, "the Children").
C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.

D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.

E. Jane and John have lived separately and apart since December 25th, 2010 (the "Date of Separation"), when Jane left the family home.

F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm.

...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them.

Essentially, every fact which is relevant to the agreement should be put into the recitals to the agreement.

====The Operative Clauses====

These paragraphs set out the meat of the matter; they form the essential terms of the agreement and set out what each party's rights and obligations are. In the case of a separation agreement, this section might look like this:

IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

1. Jane and John shall live separate and apart and be free from the control of each other.

2. Neither party shall directly or indirectly molest, annoy or harass the other or his or her friends, relatives and associates.

3. Except as is specifically provided in this Agreement, Jane and John shall each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.

THE CHILDREN

4. Jane and John shall share the permanent joint custody and joint guardianship of the Children, and John shall have the Children's primary residence.

5. Jane shall have access to the children every Wednesday night, from the end of school until 8:00pm, and on every other weekend from the end of school until the following Sunday at 8:00pm.

6. Jane shall have additional access to the children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.

CHILD SUPPORT

7. Jane shall pay child support to John in the amount of $492 on the first day of each and every month, continuing for so long as the Children remain "children of the marriage" as defined by the Divorce Act.

...and so forth. Other terms might deal with specific assets, like a car or the family home, the sharing of the children's expenses, who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce, which laws will govern the interpretation of the agreement, and so on.

====The Signatures====
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other infomation, typically his or her full name, address and occupation.

IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011.

SIGNED, SEALED AND )
DELIVERED by Jane )
in the presence of: )
)
___________________ ) ___________________
Signature ) JANE DOE
___________________ )
Name )
___________________ )
Occupation )
___________________ )
Address )
___________________ )

...which would be repeated for John's signature and that of John's witness.

Note that the witnesses are not parties to the agreement and the agreement cannot be enforced against the witnesses. The signature of the witness simply says that he or she saw the particular party sign the agreement in case a party ever denies signing the agreement.

==Negotiating Considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Horton's. This is fine, providing everyone is relatively friendly and the parties are approaching their negotiations from a level footing. The court will respect the agreements that negotiations like these produce on the basis that people are free to make their own bargains and to contract to whatever they like.

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court held that family law agreements should not be considered with exactly the same standards that are applied to ordinariy commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, Leopold v. Leopold:

"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."
In a 2009 case, Rick v. Brandsema, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

exploiting a party's emotional or psychological vulnerability;
influence over a party through dominance and oppression;
control over the family finances;
influence over the children's allegiances; or,
access to or control over the release of financial information;
Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

Independent legal advice: Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the same lawyers witness the parties' signatures on the agreement, and execute certificates of independent legal advice.
Respect vulnerabilities: Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
Make full disclosure: Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewellry appraisals and so on.
Never lie: Intentionally misleading someone about a value, a debt, past and future income expectations or any other relevant factor will always undermine the strength of an agreement. Be scruplously honest and transparent at all times.
Know the law: The Divorce Act and the Family Relations Act say when and why spousal support and child support should be paid. The Divorce Act talks about how much time children should have with their parents. For married couples, the Family Relations Act talks about how assets should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

==Drafting Considerations==

First of all, it is always best to have a qualified professional prepare any sort of agreement. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as:

income tax consequences;
the transfer of property; or,
liabilities to third-parties and creditors.
This segment discusses a few things you might want to keep in mind for those times when hiring a lawyer is not practical or possible.

===Don't Use "Legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" have a particular legal meaning, in this case first-generation, directly-descended heirs, that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as Clear as Possible===

Ask yourself these questions:

What would a complete stranger think of your agreement?
Would the stranger be able to understand what you mean?
Are any parts of the agreement vague or capable of more than one meaning?
Do you understand what the agreement means?
If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid Agreeing to Agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the Loose Ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the proceeds be dealt with? These things should all be specified, where at all possible.

===Be Realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are things that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time.

===Use Sample Clauses with Caution===

Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

{{JP Boyd on Family Law Navbox|type=chapters}}

Family Law Agreements

2013-03-08T05:37:31Z

96.48.61.138: /* Introduction */

{{JP Boyd on Family Law TOC}}

A family law agreement usually a cohabitiation agreement, a marriage agreement or a separation agreement is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed.

This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

'''DRAFT UNEDITED'''

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also known as a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The weird thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that might happen in five years or in twenty years, or it may never happen. It can be very difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses and unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts which describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' just dealing with the care of the children when their relationship has ended.

It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the order and make an order on different terms.

The ''Family Law Act'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214, the court may:

#set aside part of an agreement, without changing the rest of the agreement;
#incorporate all or part of an agreement into an order; or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with your application.

==The Role of Family Law Agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute since they can be tailored to suit the particular circumstances and needs of each party, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and Cohabitation Agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes address how things will be handled during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the ''Divorce Act'' or the ''Family Law Act'' if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the Relationship====

The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing purple shirts on Thursdays, to doing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for?
*How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown.

====After the Relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation Agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is executed; in fact, when a couple is married it's usually best to deal with the separation agreement before applying for a divorce just in case an agreement can't be reached.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is an issue for a couple, even things that the court would not ordinarily deal with or be capable of dealing with.

Separation agreements are binding from the moment they are signed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement may continue to be legally binding on them.

==The Elements of a Family Law Agreement==

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a specific way and include specific terms.

===Entering into an Agreement===

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. In addition, the people entering into the agreement must be able to understand the agreement, be capable of entering into it and enter into it voluntarily. This is what s. 93(3) says on this issue:

STOPPED

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

The legal formalities common to all family agreements are these:

The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
The parties must be over the age of majority, and cannot be under any other form of legal disability such as insanity.
The parties must both enter into the agreement of their own free will, without any duress or coercion by the other party.
The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
The agreement must be properly executed, preferably in the presence of witnesses.
As a general rule, each party who enters into a family law agreement should get independent legal advice about:

what the agreement means;
what rights and obligations the agreement gives each party;
how the agreement does or does not limit the other legal remedies each party may have outside the agreement;
how the agreement may affect each party over the short- and long-term; and,
the options and remedies that would have been available had the parties chosen to litigate the issues settled in the agreement.
Each party should find their own separate lawyer and meet with the lawyer to review the draft agreement. This process is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact on him or her.

===Drafting an Agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language does not mean that an agreement using different wording will not be valid because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try LawDepot.com, an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at your local courthouse law library; one of the very best is the Family Law Agreements Manual published by the Continuing Legal Education Society.

The following are the typical elements of a family agreement, using the example of John and Jane Doe, a fictitious married couple entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The Introduction====

Also known as the exordium, this portion of an agreement identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

THIS SEPARATION AGREEMENT is made on this the 1st day of January, 2011.

BETWEEN:
Jane Doe
of 123 King Street, Anytown, British Columbia
("Jane")

AND
John Doe
of 456 Queen Street, Anytown, British Columbia
("John")

====The Recitals====

These are paragraphs that set out the facts on which the agreement is based, and include the basic facts of the relationship, the names and birth dates of any children, as well as the assets each party owns and their respective incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a stranger why the parties entered not just into an agreement but this particular agreement. As a result, the recitals are also promises of a sort, in the sense that the parties promise that the facts are true.

It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, this section typically looks like this:

WHEREAS:

A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia.

B. There are two children of the marriage, namely

i) Sally Doe, born on March 5th, 1995, and
ii) Randy Doe, born on April 11th, 1997
(together, "the Children").
C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.

D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.

E. Jane and John have lived separately and apart since December 25th, 2010 (the "Date of Separation"), when Jane left the family home.

F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm.

...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them.

Essentially, every fact which is relevant to the agreement should be put into the recitals to the agreement.

====The Operative Clauses====

These paragraphs set out the meat of the matter; they form the essential terms of the agreement and set out what each party's rights and obligations are. In the case of a separation agreement, this section might look like this:

IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

1. Jane and John shall live separate and apart and be free from the control of each other.

2. Neither party shall directly or indirectly molest, annoy or harass the other or his or her friends, relatives and associates.

3. Except as is specifically provided in this Agreement, Jane and John shall each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.

THE CHILDREN

4. Jane and John shall share the permanent joint custody and joint guardianship of the Children, and John shall have the Children's primary residence.

5. Jane shall have access to the children every Wednesday night, from the end of school until 8:00pm, and on every other weekend from the end of school until the following Sunday at 8:00pm.

6. Jane shall have additional access to the children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.

CHILD SUPPORT

7. Jane shall pay child support to John in the amount of $492 on the first day of each and every month, continuing for so long as the Children remain "children of the marriage" as defined by the Divorce Act.

...and so forth. Other terms might deal with specific assets, like a car or the family home, the sharing of the children's expenses, who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce, which laws will govern the interpretation of the agreement, and so on.

====The Signatures====
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other infomation, typically his or her full name, address and occupation.

IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011.

SIGNED, SEALED AND )
DELIVERED by Jane )
in the presence of: )
)
___________________ ) ___________________
Signature ) JANE DOE
___________________ )
Name )
___________________ )
Occupation )
___________________ )
Address )
___________________ )

...which would be repeated for John's signature and that of John's witness.

Note that the witnesses are not parties to the agreement and the agreement cannot be enforced against the witnesses. The signature of the witness simply says that he or she saw the particular party sign the agreement in case a party ever denies signing the agreement.

==Negotiating Considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Horton's. This is fine, providing everyone is relatively friendly and the parties are approaching their negotiations from a level footing. The court will respect the agreements that negotiations like these produce on the basis that people are free to make their own bargains and to contract to whatever they like.

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court held that family law agreements should not be considered with exactly the same standards that are applied to ordinariy commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, Leopold v. Leopold:

"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."
In a 2009 case, Rick v. Brandsema, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

exploiting a party's emotional or psychological vulnerability;
influence over a party through dominance and oppression;
control over the family finances;
influence over the children's allegiances; or,
access to or control over the release of financial information;
Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

Independent legal advice: Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the same lawyers witness the parties' signatures on the agreement, and execute certificates of independent legal advice.
Respect vulnerabilities: Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
Make full disclosure: Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewellry appraisals and so on.
Never lie: Intentionally misleading someone about a value, a debt, past and future income expectations or any other relevant factor will always undermine the strength of an agreement. Be scruplously honest and transparent at all times.
Know the law: The Divorce Act and the Family Relations Act say when and why spousal support and child support should be paid. The Divorce Act talks about how much time children should have with their parents. For married couples, the Family Relations Act talks about how assets should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

==Drafting Considerations==

First of all, it is always best to have a qualified professional prepare any sort of agreement. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as:

income tax consequences;
the transfer of property; or,
liabilities to third-parties and creditors.
This segment discusses a few things you might want to keep in mind for those times when hiring a lawyer is not practical or possible.

===Don't Use "Legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" have a particular legal meaning, in this case first-generation, directly-descended heirs, that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as Clear as Possible===

Ask yourself these questions:

What would a complete stranger think of your agreement?
Would the stranger be able to understand what you mean?
Are any parts of the agreement vague or capable of more than one meaning?
Do you understand what the agreement means?
If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid Agreeing to Agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the Loose Ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the proceeds be dealt with? These things should all be specified, where at all possible.

===Be Realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are things that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time.

===Use Sample Clauses with Caution===

Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Family Law Agreements

2013-03-08T05:36:18Z

96.48.61.138:

{{JP Boyd on Family Law TOC}}

A family law agreement usually a cohabitiation agreement, a marriage agreement or a separation agreement is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed.

This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

'''DRAFT UNEDITED'''

==Introduction==

People who sign a family law agreement when they marry or plan to marry are entering into a ''marriage agreement'', also known as a pre-nuptial agreement. People who sign an agreement when they start living together or plan on living together are entering into a ''cohabitation agreement'', also called a living-together agreement.

The usual point of agreements like these is to say what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The weird thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that might happen in five years or in twenty years, or it may never happen. It can be very difficult to make plans based on what the family's circumstances might be like at some unknown point in the future when the relationship ends.

Married spouses and unmarried couples who enter into an agreement after their relationship has broken down are entering into a ''separation agreement''. A separation agreement is a contract that describes how some or all of the legal issues arising from the end of the relationship have been resolved.

All of these different kinds of agreement are legal contracts which describe the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with. A couple might sign a ''property agreement'' dealing with just property issues, or a ''parenting agreement'' just dealing with the care of the children when their relationship has ended.

It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps set aside the order and make an order on different terms.

The ''Family Law Act'' encourages people to make agreements resolving their disputes rather than going to court. Section 6 of the act says this:

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote>
<blockquote><tt>(2) A single agreement may be made respecting one or more matters.</tt></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>

Under s. 214, the court may:

#set aside part of an agreement, without changing the rest of the agreement;
#incorporate all or part of an agreement into an order; or,
#make an order replacing all or part of an agreement.

The test the court must apply in deciding whether to set aside an agreement changes depending on the subject matter of the part of the agreement which is under attack. Some tests, like the test to make a child support order in place of an agreement on child support, are really easy; others, like the test to set aside an agreement on property division, are really hard. If you're asking the court to set aside an agreement, you must read the parts of the ''Family Law Act'' that deal with your application.

==The Role of Family Law Agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute.

It is almost always better to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other in the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute since they can be tailored to suit the particular circumstances and needs of each party, and can be far more creative in resolving a problem than a court order ever could be.

===Marriage and Cohabitation Agreements===

Marriage agreements and cohabitation agreements usually talk about what will happen if the parties' relationship breaks down, although they can sometimes address how things will be handled during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the ''Divorce Act'' or the ''Family Law Act'' if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy!), are coming into the relationship with children, are coming into the relationship with significant assets or significant debts, or expect to receive significant assets during the relationship. A young couple who have no significant assets and no children don't necessarily have any particular need to sign a marriage agreement or a cohabitation agreement.

====During the Relationship====

The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing purple shirts on Thursdays, to doing the household chores. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionately to the parties' incomes?
*How will unexpected expenses be paid for?
*How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount?
*How will each party's income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown.

====After the Relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can also deal with the payment or non-payment of spousal support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. Agreements about the care of children or the payment of child support are only binding if they are made after separation or when the parties are about to separate.

===Separation Agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is executed; in fact, when a couple is married it's usually best to deal with the separation agreement before applying for a divorce just in case an agreement can't be reached.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

*How will the children be cared for?
*If the children will be living mostly with one parent, how much time with the children will the other parent have?
*How much child support be paid, and which of the children's expenses will be shared between the parents?
*Should a party receive spousal support? If so, how much support should be paid and for how long?
*How will the family property be divided? Should the parties' excluded property be divided?
*How will the family debt be divided?

Separation agreements can cover everything that is an issue for a couple, even things that the court would not ordinarily deal with or be capable of dealing with.

Separation agreements are binding from the moment they are signed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement may continue to be legally binding on them.

==The Elements of a Family Law Agreement==

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by. In order to be legally binding and enforceable, agreements must be negotiated, drafted and signed in a specific way and include specific terms.

===Entering into an Agreement===

Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. In addition, the people entering into the agreement must be able to understand the agreement, be capable of entering into it and enter into it voluntarily. This is what s. 93(3) says on this issue:

STOPPED

(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement;
(b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress;
(c) a spouse did not understand the nature or consequences of the agreement;
(d) other circumstances that would, under the common law, cause all or part of a contract to be voidable.

The legal formalities common to all family agreements are these:

The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
The parties must be over the age of majority, and cannot be under any other form of legal disability such as insanity.
The parties must both enter into the agreement of their own free will, without any duress or coercion by the other party.
The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
The agreement must be properly executed, preferably in the presence of witnesses.
As a general rule, each party who enters into a family law agreement should get independent legal advice about:

what the agreement means;
what rights and obligations the agreement gives each party;
how the agreement does or does not limit the other legal remedies each party may have outside the agreement;
how the agreement may affect each party over the short- and long-term; and,
the options and remedies that would have been available had the parties chosen to litigate the issues settled in the agreement.
Each party should find their own separate lawyer and meet with the lawyer to review the draft agreement. This process is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact on him or her.

===Drafting an Agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language does not mean that an agreement using different wording will not be valid because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try LawDepot.com, an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at your local courthouse law library; one of the very best is the Family Law Agreements Manual published by the Continuing Legal Education Society.

The following are the typical elements of a family agreement, using the example of John and Jane Doe, a fictitious married couple entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The Introduction====

Also known as the exordium, this portion of an agreement identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

THIS SEPARATION AGREEMENT is made on this the 1st day of January, 2011.

BETWEEN:
Jane Doe
of 123 King Street, Anytown, British Columbia
("Jane")

AND
John Doe
of 456 Queen Street, Anytown, British Columbia
("John")

====The Recitals====

These are paragraphs that set out the facts on which the agreement is based, and include the basic facts of the relationship, the names and birth dates of any children, as well as the assets each party owns and their respective incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a stranger why the parties entered not just into an agreement but this particular agreement. As a result, the recitals are also promises of a sort, in the sense that the parties promise that the facts are true.

It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, this section typically looks like this:

WHEREAS:

A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia.

B. There are two children of the marriage, namely

i) Sally Doe, born on March 5th, 1995, and
ii) Randy Doe, born on April 11th, 1997
(together, "the Children").
C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.

D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.

E. Jane and John have lived separately and apart since December 25th, 2010 (the "Date of Separation"), when Jane left the family home.

F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm.

...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them.

Essentially, every fact which is relevant to the agreement should be put into the recitals to the agreement.

====The Operative Clauses====

These paragraphs set out the meat of the matter; they form the essential terms of the agreement and set out what each party's rights and obligations are. In the case of a separation agreement, this section might look like this:

IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

1. Jane and John shall live separate and apart and be free from the control of each other.

2. Neither party shall directly or indirectly molest, annoy or harass the other or his or her friends, relatives and associates.

3. Except as is specifically provided in this Agreement, Jane and John shall each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.

THE CHILDREN

4. Jane and John shall share the permanent joint custody and joint guardianship of the Children, and John shall have the Children's primary residence.

5. Jane shall have access to the children every Wednesday night, from the end of school until 8:00pm, and on every other weekend from the end of school until the following Sunday at 8:00pm.

6. Jane shall have additional access to the children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.

CHILD SUPPORT

7. Jane shall pay child support to John in the amount of $492 on the first day of each and every month, continuing for so long as the Children remain "children of the marriage" as defined by the Divorce Act.

...and so forth. Other terms might deal with specific assets, like a car or the family home, the sharing of the children's expenses, who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce, which laws will govern the interpretation of the agreement, and so on.

====The Signatures====
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other infomation, typically his or her full name, address and occupation.

IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011.

SIGNED, SEALED AND )
DELIVERED by Jane )
in the presence of: )
)
___________________ ) ___________________
Signature ) JANE DOE
___________________ )
Name )
___________________ )
Occupation )
___________________ )
Address )
___________________ )

...which would be repeated for John's signature and that of John's witness.

Note that the witnesses are not parties to the agreement and the agreement cannot be enforced against the witnesses. The signature of the witness simply says that he or she saw the particular party sign the agreement in case a party ever denies signing the agreement.

==Negotiating Considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Horton's. This is fine, providing everyone is relatively friendly and the parties are approaching their negotiations from a level footing. The court will respect the agreements that negotiations like these produce on the basis that people are free to make their own bargains and to contract to whatever they like.

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court held that family law agreements should not be considered with exactly the same standards that are applied to ordinariy commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, Leopold v. Leopold:

"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."
In a 2009 case, Rick v. Brandsema, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

exploiting a party's emotional or psychological vulnerability;
influence over a party through dominance and oppression;
control over the family finances;
influence over the children's allegiances; or,
access to or control over the release of financial information;
Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

Independent legal advice: Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the same lawyers witness the parties' signatures on the agreement, and execute certificates of independent legal advice.
Respect vulnerabilities: Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
Make full disclosure: Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewellry appraisals and so on.
Never lie: Intentionally misleading someone about a value, a debt, past and future income expectations or any other relevant factor will always undermine the strength of an agreement. Be scruplously honest and transparent at all times.
Know the law: The Divorce Act and the Family Relations Act say when and why spousal support and child support should be paid. The Divorce Act talks about how much time children should have with their parents. For married couples, the Family Relations Act talks about how assets should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

==Drafting Considerations==

First of all, it is always best to have a qualified professional prepare any sort of agreement. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as:

income tax consequences;
the transfer of property; or,
liabilities to third-parties and creditors.
This segment discusses a few things you might want to keep in mind for those times when hiring a lawyer is not practical or possible.

===Don't Use "Legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" have a particular legal meaning, in this case first-generation, directly-descended heirs, that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as Clear as Possible===

Ask yourself these questions:

What would a complete stranger think of your agreement?
Would the stranger be able to understand what you mean?
Are any parts of the agreement vague or capable of more than one meaning?
Do you understand what the agreement means?
If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid Agreeing to Agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the Loose Ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the proceeds be dealt with? These things should all be specified, where at all possible.

===Be Realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are things that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time.

===Use Sample Clauses with Caution===

Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

{{JP Boyd on Family Law Navbox|type=chapters}}

Introduction to Family Law in British Columbia

2013-03-06T13:28:40Z

96.48.61.138: /* The Courts */

{{JP Boyd on Family Law TOC}}

Welcome to Family Law Basics. This page offers a quick introduction to the court system and the laws and principles of family law in British Columbia. It's written in easy-to-understand language and is meant for people who have never had to deal with the court system before and for people who are new to Canada.

This page is meant to be read as a whole, from start to finish. The main sections of this website, listed in the menu to the right, go into each subject in a lot more detail. When you're done with this page, the chapter The Legal System has a more complete introduction to family law and the court process in BC.

This chapter contains an introduction to family law and an overview of common family law problems, the laws that deal with family law problems, and the courts that deal with family law problems. It talks about the law on:

*the care of children
*child support
*spousal support
*the division of property
*separation and divorce
*family law agreements

==Introduction==

When a couple breaks up, they sometimes have to decide how property should be divided, how a child will be cared for, and whether someone needs some extra money to help pay the bills. Family law, also called divorce law, is the area of the law that deals with problems like these.

To understand how family law works in British Columbia, you need to have a basic understanding of the court system, the laws about family law problems, and the way the courts apply those laws when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about negotiation and mediation. These are the most common ways that people solve their problems without the help of a judge.

Family law problems are solved in one of two ways: the couple negotiates with each other and comes up with a solution that they both agree to; or, the couple can't agree and they have to go to court to have a judge come up with a solution. Going to court means that one or both people have to start a court proceeding. (Court proceedings are also known as ''lawsuits'', ''claims'' or ''actions''.) Going to court is called ''litigation''; trying to come up with an agreement without going to court is called ''negotiation''.

There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme Court. Each court has their own rules, their own forms and their own process.

There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. These laws are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws will apply; for others, only one of these laws will apply, probably the ''Family Law Act''.

You don't have to go to court, no matter how bad your problem is. The only times you must go to court are when:

#you need a divorce;
#someone is threatening to do something serious, like taking the children away;
#there is a risk of violence;
#someone is threatening to hide property or money; or,
#you just can't agree about how to fix the problem no matter how hard you try.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who is usually a stranger to them, called a ''mediator''. Mediators help to guide the negotiation process and encourage people to see different ways of solving the problem.

Lawyers who mediate family law problems are called ''family law mediators'', and have special training in mediation apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at the mediator's credentials before agreeing to use that person as your mediator.

'''Further Reading:

*The Legal System
*Alternatives to Court
*Children > Parenting After Separation'''

==Common Family Law Problems==

Couples who aren't married, couples who live together, and couples who are married can all have family law problems when their relationships end. Family law affects same-sex couples in exactly the same way that it affects opposite-sex couples.

The sorts of problems a couple can have when their relationship ends include deciding how the children will be cared for, whether support should be paid, and who will keep what property.

Family law problems about children are:

#''custody'' and ''parenting time'', which include deciding where the children will live for most of the time;
#''custody'' and ''parental responsibilities'', which include deciding how the parents will make decisions about important things in the children's lives, about issues like health care and education; and,
#''parenting time'', ''contact'' and ''access'', which are about deciding how much time each parent will have with the children.

Support means money that one person pays another to help with that person's expenses:

#''child support'' is money that is paid to help with expenses for with the children, like small school fees, clothing and food; and,
#''spousal support'' is money that is paid to help with a person's day-to-day living expenses, like rent, the phone bill and the hydro bill, and sometimes to compensate a person for the financial decisions made during the relationship.

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property will be shared between them. In family law, the property married spouses and unmarried spouses share is called ''family property''. Family property can include things like houses, bank accounts and cars. It can also include RRSPs and pensions.

Sometimes a couple also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between married spouses and unmarried spouses.

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal end of a marriage, and only a judge can make you divorced. Most married spouses whose relationship has ended want to get divorced, but it's usually a low priority. Couples who aren't married, including unmarried spouses, never need to get divorced.

All of these family law problems will be discussed in more detail later on.

As you can see, the sorts of family law problems a couple can have sometimes depends on what their relationship was like. In family law, there are three types of relationship:

#Unmarried Couples: An unmarried couple probably think of themselves as boyfriend and girlfriend. They may have lived together, but not for too long. Sometimes an unmarried couple involved in a family law problem will have been together only for a very short while... perhaps just long enough to make a baby.
#Unmarried Spouses: Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving relationship, and, for most purposes of the ''Family Law Act'', must have lived together for at least two years or for less than two years if the spouses have had a child together.
#Married Spouses: Married spouses have been legally married, by a marriage commissioner or a religious official licenced to perform marriages, and their marriage has been registered with the government where they were married.

'''Further Reading:

*Children
*Child Support
*Spousal Support
*Family Assets
*Marriage & Divorce > Marriage
*Unmarried Couples'''

==The Courts==

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. Most family law litigation happens in the Provincial Court and the Supreme Court.

The branch of the Provincial Court that deals with family law is called the Provincial (Family) Court. Other branches of the Provincial Court include the Provincial (Youth) Court and the Provincial (Small Claims) Court. Family court can deal with:

#guardianship under the ''Family Law Act'';
#parental responsibilities, parenting time and contact under the ''Family Law Act'';
#child support;
#spousal support; and,
#orders protecting people.

The Supreme Court can deal with all family law problems. On top of issues about the care of children, child support and spousal support, this court can also deal with:

#divorce;
#custody and access under the ''Divorce Act'';
#dividing family property and family debt; and,
#orders protecting property.

This chart shows which court can deal with which problem:

CHART

To get to court, you must start a court proceeding and tell the court what you want. In the Provincial Court, proceedings are started with a court form called an Application to Obtain an Order. In the Supreme Court, the court form is called a Notice of Family Claim. In the Provincial Court, the person who starts a court proceeding is called the ''Applicant''; in the Supreme Court, this person is the ''Claimant''.

Once a court proceeding has started, the other person can answer the claims being made and make new claims. In the Provincial Court, this answer is called a Reply. In the Supreme Court, two court forms can be used: a Response to Family Claim and a Counterclaim. In the Provincial Court and in the Supreme Court, the person answering a court proceeding is called the ''Respondent''.

Applicants and Respondents (in the Provincial Court), and Claimants and Respondents (in the Supreme Court), are called the ''parties'' to the court proceeding.

After the Respondent has filed a reply to the claim, both parties can ask the court to make an ''order'' about some or all of the issues the raised in the court proceeding. An order is a decision of a judge that requires someone to do something or not do something. For example, a court can make an order that a child live mostly with one party, an order that one party not harass the other, or an order that one party have the family car.

Orders can be made ''by consent'', which means that they are made with the agreement of both people. If the couple can't agree on the terms of the order, they must go to a hearing before a judge and have the judge make an order. There are two types of order: an ''interim order'', which is any order made before trial; and, a ''final order'', which is an order made at the end of a trial. A trial is the final hearing before the judge that concludes the court proceeding.

If you don't like the order you get from a judge, you can challenge the order before a higher level of court in a court proceeding called an ''appeal''. An order of the Provincial Court is appealed to the Supreme Court. An order of the Supreme Court is appealed to the Court of Appeal. You cannot appeal an order that you agreed to.

Over time, the terms of an order may need to be changed. If there has been a serious change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called ''varying'' an order.

'''Further Reading:

*The Legal System
*The Legal System > The Courts
*The Legal System > Starting an Action
*The Legal System > Defending an Action
*The Legal System > Interim Applications'''

==The Laws==

There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'' or ''acts''; and, laws made by the courts. Laws made by the courts are known as the ''common law'', ''precedent decisions'' or ''case law''. They come from the different law suits that the courts have heard over hundreds of years, and the decisions the courts made in those different court proceedings.

Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each piece of legislation deals with different family law problems and applies to different kinds of relationships.

The ''Divorce Act'' only applies to people who are married or who used to be married to each other. It deals with:

#divorce;
#custody;
#access;
#child support; and,
#spousal support.

The ''Family Law Act'' applies to married spouses, unmarried spouses, and couples who are neither married spouses nor unmarried spouses and are perhaps just dating. This law deals with:

#guardianship;
#parental responsibilities and parenting time;
#contact;
#child support;
#spousal support;
#dividing family property and family debt;
#orders protecting people; and,
#orders protecting property.

Unmarried couples can only use the ''Family Law Act'' to ask for orders about the care of children, child support and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property.

The Supreme Court can make orders under both the ''Divorce Act'' and the ''Family Law Act''. The Provincial Court can only make orders under the parts of the ''Family Law Act'' that don't deal with property.

This chart shows which law deals with which issue:

CHART

There is a bunch of other legislation that deals with family law problems, such as the ''Adoption Act'' (which deals with adoption), the ''Name Act'' (which deals with changing your name and your children's names), the ''Land Title Act'' (which has to do with land and houses), and the ''Vital Statistics Act'' (which has to do with registering births, deaths, marriages and divorces). The most important of these other laws is the Child Support Guidelines.

The Child Support Guidelines sets out the rules about how much child support should be paid according to the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different than what the tables say should be paid.

'''Further Reading:

*The Legal System
*The Legal System > The Law
*Legislation
*Child Support > The Guidelines'''

==The Care and Control of Children==

There are three things that parents must decide when their relationship ends: where the children will mostly live; how the parents will make decisions about the important events in the children's lives; and, how much time each parent will have with the children.

Custody sort of means where the children will live most of the time. Parents can share custody, called joint custody, or only one parent can have custody, called sole custody. Whether the parents have joint custody or sole custody has very little to do with how much time they each have with the children. Because of this, "custody" doesn't mean very much when both parents are in their children's lives.

Guardianship is all about parenting. It is about making decisions about where the children go to school, how they are treated when they get sick, whether they will play sports or take music lessons, and about the children's religion. Both parents can have joint guardianship or one parent can have sole guardianship. A parent with sole guardianship does not need to ask the other parent about these important decisions. When the parents have joint guardianship they must talk to each other and work together to make decisions about the children.

In many ways, guardianship is a lot more important than custody, since guardianship is all about raising the children. Guardianship is about parenting.

Access is the amount of time that each parent has with the children. Usually, access refers to the time that the parent with the least amount of time with the children has with the children. Any sort of access is possible. The children's time can be shared equally between the parents; a parent can have the children every other weekend; a parent can have the children for three days every week. Whatever arrangement you can think of, you can have. Access is also called parenting time, a parenting schedule or a parent's time with the children.

When the court must decided about custody, guardianship or access, the most important thing for the court is making a decision that is in the best interests of the children. The court isn't interested in what the parents want for themselves; the court is interested in how what a parent wants is or isn't in the best interests of the children.

Further Reading

Children > Custody
Children > Guardianship
Children > Access
Back to the top of this chapter.

VI. Child Support

Child support is normally paid by the parent who has the children for the least amount of time to the parent who has the children for the most amount of time. Child support is paid to help with the children's day-to-day living expenses, and covers a lot of things, from new clothes to school supplies to the children's share of the rent. Child support is not a fee a parent must pay to see the children. Child support has nothing to do with custody, guardianship or access, or whether a parent is a good parent or a bad parent.

Child support is almost always paid every month in the amount set out in the Child Support Guidelines. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college full-time.

Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount where the children's time is shared almost equally between the parents or when paying the amount required by the Guidelines would cause serious financial hardship.

The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called extraordinary expenses, are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children need.

Where the children have extraordinary expenses, the parents contribute to those expense in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%.

The chapter Child Support > The Guidelines has calculators for child support and sharing children's extraordinary expenses.

Further Reading

Child Support
Child Support > The Guidelines
Back to the top of this chapter.

VII. Spousal Support

Spousal support is not paid just because a couple were married in a common-law relationship. Spousal support is only paid where a person is in financial need or deserves compensation because of:

financial decisions made during the relationship; or,
the financial consequences of the end of the relationship.
Financial decisions during a relationship can cause someone to be entitled to compensation if the couple decided that one of them should quit work and stay at home to raise the children and be a homemaker. Someone who stays at home may have to leave a job or a career, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to.

The end of a relationship can cause someone to need financial help. After a couple separate, the same amount of income they had during the relationship now has to pay for two rent bills, two hydro bills and two grocery bills. When the couple were together, however, their combined incomes only had to pay for one rent bill, one hydro bill and one phone bill.

Spousal support is usually paid every month. The amount of spousal support that should be paid is usually an amount that the person with more money can afford to pay, with the money left over after that person's basic living expenses have been paid.

When a relationship was very long or the couple are older, spousal support can be paid for ever. When the couple is younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support.

The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the Spousal Support Advisory Guidelines. The Advisory Guidelines uses two formulas, one for when a couple has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income. There are three very important things to know about the Advisory Guidelines:

The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid.
The Advisory Guidelines is only used when some is proven to be entitled to receive support; if there is no entitlement the Advisory Guidelines don't apply.
The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a couple has children cannot be done without a computer program.
Only people who were married or in a common-law relationship can ask for spousal support. Common-law couples must ask for spousal support within one year of the date they separated; married couples can ask for support at any time after they have separated.

Further Reading

Spousal Support
Spousal Support > The Advisory Guidelines
Back to the top of this chapter.

VIII. Dividing Family Property

Married people are presumed to have a one-half interest in everything that is a family asset, regardless of who bought it or when it was bought. A family asset is any asset that was normally used by the family, such as the family home, the car, the couple's bank accounts and so forth. Family assets also include things like RRSPs and pensions.

Not all assets are family assets. Business assets, assets owned by a spouse's company, are not always family assets that can be shared. Other assets, like inheritances and court awards, are usually personal assets that are not divided.

A married person can sometimes be entitled to more than half of the family assets, especially if the marriage was really long and the person needs more help to be financially independent than spousal support will give. A married person can also be entitled to more than half of the family assets if the person brought most of those assets into the marriage and the marriage was short.

For married people, family assets are divided under the rules set out in the Family Relations Act. People who aren't married cannot use this law to divide their property. The rules in the act only apply to married couples. They do not apply to common-law couples or to other couples who are neither married nor common-law.

Unmarried couples, including common-law couples, who own something together are presumed to have equal interests in that thing. Unmarried couples can only get a share of property owned only by the other person under the rules of trust law. Trust law is very complicated, and unmarried couples almost never get the same share of the other person's property that they would have gotten if they were married.

Further Reading

Family Assets
Family Assets > Dividing Assets
Unmarried Couples > Common-Law Relationships
Back to the top of this chapter.

IX. Separation and Divorce

You do not need a legal document in order to separate, and you don't need to see a lawyer or a judge to separate. You just leave the relationship or announce that it's over. There is no such thing as a "legal separation" in British Columbia.

For unmarried and common-law couples, their relationship is over the moment they separate. That's it, it's done! There is no such thing as a "common-law marriage," and common-law couples do not need to get divorced.

For a marriage to end, however, a married couple must divorce, and that means they must get a court order saying that they are are divorced. A married couple can be separated for many years but still be married if they haven't gotten a divorce order.

Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in a common-law relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name and so on.

There are three reasons why a court will make a divorce order:

the couple have separated and have stayed separated for more than one year;
one spouse has had sex with someone other than his or her spouse, called adultery; or,
one spouse has been verbally, emotionally or physically abusive to his or her spouse, which is what the Divorce Act means by cruelty.
To get a divorce order, you have to start a law suit. You don't have to ask the court for anything else except a divorce. When a couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order divorce process, and they won't have to go in front of a judge ever.

Further Reading

Marriage & Divorce > Separation
Unmarried Couples
Marriage & Divorce > Separating Emotionally
Marriage & Divorce > Divorce
Back to the top of this chapter.

X. Family Law Agreements

A family law agreement is a contract, like the contract you might have with your landlord, your employer, or the contract you might have if you lease a car. There are three kinds of agreement a couple can make in family law:

Cohabitation agreements, agreements that a couple make when they are living together or plan to living together.
Marriage agreements, which a couple may want if they are going to be getting married.
Separation agreements, which a married or common-law couple might make after their relationship ends.
Cohabitation agreements and marriage agreements are for couples who are just starting a relationship. These sorts of agreements can talk about how the relationship will be managed (who will pay the bills, will there be a joint bank account or a joint credit card, or who will do what parts of the housework), but most often they talk about what will happen if the relationship ends. These agreements are usually meant to stop a couple from fighting after a relationship ends by setting out who will get what right from the start.

The law does not require that a couple make a cohabitation agreement or a marriage agreement when they start to live together or marry. You do not have to sign an agreement if you don't want to.

Cohabitation agreements and marriage agreements aren't for everyone. People who are bringing a lot of property, money or children into a relationship may want a cohabitation agreement or a marriage agreement. People who don't have property or children, are young, and expect to have a long-term relationship usually don't need an agreement.

Separation agreements are made after a relationship has ended. They set out how a couple have agreed to deal with things like the care of children, child support and spousal support, and how the family assets will be shared. Separation agreements don't have to cover all the family law problems a couple has. They can deal with just some of those problems and leave the rest for the court to decide.

Normally a couple talk together about the problems and negotiate an agreement that they are both happy with. It is very rare for just one person to make the separation agreement without talking to the other person. You do not have to sign a separation agreement if you don't want to.

No matter what kind of family law agreement you have signed, you both expect that each of you will follow the agreement, and that the court will enforce the agreement if you don't follow the agreement. The court will generally respect an agreement that a couple willingly signed, as long as the agreement was fair and neither person misled the other person about something important, like money or property.

Further Reading

Family Agreements
Alternatives to Court
Back to the top of this chapter.

XI. Information for People who are New to Canada

In Canada, men and women have exactly the same rights. There is no difference between the rights a man has and the rights that a women has, whether they are married to each other or not. Men do not have the right to control women or tell them what they may and may not do, even if a couple are married.

Our courts are open to everybody who lives in Canada, not to poeple who have Canadian citizenship. People who are new to Canada can make a claim in court, regardless of their citizenship status, and regardless of whether they are a landed immigrant or not.

There is no law that requires someone who is unhappy in a marriage to stay in that marriage. If someone wants to leave a relationship, he or she can, and that person does not need the permission or agreement of the other spouse to leave.

In Canada, there is no requirement for either dowry or dower to be paid when a couple marries. Even if a religion requires such a payment, the religious duty is not legally binding in Canada.

While arranged marriages are fairly common, the parties must agree to the marriage of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives about the marriage is not legally binding on the people who are supposed to be married.

When one spouse sponsors another spouse to come to Canada, that person will usually sign a "sponsorship agreement" with the government. That agreement requires the sponsor to support the person coming to Canada, whether they stay married or separate or divorce. This agreement is only binding between the sponsor and the government. If the person coming to Canada needs spousal support, for example, he or she will have ask the court for an order that spousal support be paid.

Separation does not automatically mean that someone new to Canada will have to leave the country. People who are permanent residents, for example, will be allowed to stay, regardless of what is happening in their relationship with their sponsors. You should, however, speak to an immigration lawyer just to be sure.

In Canada you must have a court order to divorce and legally end a marriage. Religious divorces are not recognized in Canada. The decisions of religious tribunals about how a separated couple will share their assets or manage the care and control of their children are not recognized in British Columbia.

Further Reading

Other Family Law Issues

{{JP Boyd on Family Law Navbox|type=started}}

Introduction to Family Law in British Columbia

2013-03-06T13:27:48Z

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{{JP Boyd on Family Law TOC}}

Welcome to Family Law Basics. This page offers a quick introduction to the court system and the laws and principles of family law in British Columbia. It's written in easy-to-understand language and is meant for people who have never had to deal with the court system before and for people who are new to Canada.

This page is meant to be read as a whole, from start to finish. The main sections of this website, listed in the menu to the right, go into each subject in a lot more detail. When you're done with this page, the chapter The Legal System has a more complete introduction to family law and the court process in BC.

This chapter contains an introduction to family law and an overview of common family law problems, the laws that deal with family law problems, and the courts that deal with family law problems. It talks about the law on:

*the care of children
*child support
*spousal support
*the division of property
*separation and divorce
*family law agreements

==Introduction==

When a couple breaks up, they sometimes have to decide how property should be divided, how a child will be cared for, and whether someone needs some extra money to help pay the bills. Family law, also called divorce law, is the area of the law that deals with problems like these.

To understand how family law works in British Columbia, you need to have a basic understanding of the court system, the laws about family law problems, and the way the courts apply those laws when a couple can't agree about something. Since it isn't always necessary to go to court when there's a problem, you also need to know about negotiation and mediation. These are the most common ways that people solve their problems without the help of a judge.

Family law problems are solved in one of two ways: the couple negotiates with each other and comes up with a solution that they both agree to; or, the couple can't agree and they have to go to court to have a judge come up with a solution. Going to court means that one or both people have to start a court proceeding. (Court proceedings are also known as ''lawsuits'', ''claims'' or ''actions''.) Going to court is called ''litigation''; trying to come up with an agreement without going to court is called ''negotiation''.

There are two courts that handle almost all family law litigation in British Columbia: the Provincial (Family) Court and the Supreme Court. Each court has their own rules, their own forms and their own process.

There are two main laws that apply to family law problems. A law, in this sense of the word, means a rule made by the government. These laws are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each law deals with different issues, although they share a lot of issues in common. For some couples, both laws will apply; for others, only one of these laws will apply, probably the ''Family Law Act''.

You don't have to go to court, no matter how bad your problem is. The only times you must go to court are when:

#you need a divorce;
#someone is threatening to do something serious, like taking the children away;
#there is a risk of violence;
#someone is threatening to hide property or money; or,
#you just can't agree about how to fix the problem no matter how hard you try.

If you don't have to deal with one or more of these issues, you can always try to negotiate a way of fixing the problem, to find a solution that you both agree with. Couples who need help negotiating sometimes hire someone else to help, someone who is usually a stranger to them, called a ''mediator''. Mediators help to guide the negotiation process and encourage people to see different ways of solving the problem.

Lawyers who mediate family law problems are called ''family law mediators'', and have special training in mediation apart from their training as lawyers. Because there are no rules about who can and who can't call themselves a mediator, you should look carefully at the mediator's credentials before agreeing to use that person as your mediator.

'''Further Reading:

*The Legal System
*Alternatives to Court
*Children > Parenting After Separation'''

==Common Family Law Problems==

Couples who aren't married, couples who live together, and couples who are married can all have family law problems when their relationships end. Family law affects same-sex couples in exactly the same way that it affects opposite-sex couples.

The sorts of problems a couple can have when their relationship ends include deciding how the children will be cared for, whether support should be paid, and who will keep what property.

Family law problems about children are:

#''custody'' and ''parenting time'', which include deciding where the children will live for most of the time;
#''custody'' and ''parental responsibilities'', which include deciding how the parents will make decisions about important things in the children's lives, about issues like health care and education; and,
#''parenting time'', ''contact'' and ''access'', which are about deciding how much time each parent will have with the children.

Support means money that one person pays another to help with that person's expenses:

#''child support'' is money that is paid to help with expenses for with the children, like small school fees, clothing and food; and,
#''spousal support'' is money that is paid to help with a person's day-to-day living expenses, like rent, the phone bill and the hydro bill, and sometimes to compensate a person for the financial decisions made during the relationship.

When a couple have property, sometimes including when only one person has property, they have to decide if and how that property will be shared between them. In family law, the property married spouses and unmarried spouses share is called ''family property''. Family property can include things like houses, bank accounts and cars. It can also include RRSPs and pensions.

Sometimes a couple also has to decide who will take responsibility for debts. Generally, only the debts that accumulated during a relationship will be shared between married spouses and unmarried spouses.

Married spouses also have to decide about whether they want to get divorced. Divorce is the legal end of a marriage, and only a judge can make you divorced. Most married spouses whose relationship has ended want to get divorced, but it's usually a low priority. Couples who aren't married, including unmarried spouses, never need to get divorced.

All of these family law problems will be discussed in more detail later on.

As you can see, the sorts of family law problems a couple can have sometimes depends on what their relationship was like. In family law, there are three types of relationship:

#Unmarried Couples: An unmarried couple probably think of themselves as boyfriend and girlfriend. They may have lived together, but not for too long. Sometimes an unmarried couple involved in a family law problem will have been together only for a very short while... perhaps just long enough to make a baby.
#Unmarried Spouses: Unmarried spouses are not legally married. Unmarried spouses have lived together in a loving relationship, and, for most purposes of the ''Family Law Act'', must have lived together for at least two years or for less than two years if the spouses have had a child together.
#Married Spouses: Married spouses have been legally married, by a marriage commissioner or a religious official licenced to perform marriages, and their marriage has been registered with the government where they were married.

'''Further Reading:

*Children
*Child Support
*Spousal Support
*Family Assets
*Marriage & Divorce > Marriage
*Unmarried Couples'''

===The Courts===

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court and the Court of Appeal. The Court of Appeal is the highest court in the province and the Provincial Court is the lowest. Most family law litigation happens in the Provincial Court and the Supreme Court.

The branch of the Provincial Court that deals with family law is called the Provincial (Family) Court. Other branches of the Provincial Court include the Provincial (Youth) Court and the Provincial (Small Claims) Court. Family court can deal with:

#guardianship under the ''Family Law Act'';
#parental responsibilities, parenting time and contact under the ''Family Law Act'';
#child support;
#spousal support; and,
#orders protecting people.

The Supreme Court can deal with all family law problems. On top of issues about the care of children, child support and spousal support, this court can also deal with:

#divorce;
#custody and access under the ''Divorce Act'';
#dividing family property and family debt; and,
#orders protecting property.

This chart shows which court can deal with which problem:

CHART

To get to court, you must start a court proceeding and tell the court what you want. In the Provincial Court, proceedings are started with a court form called an Application to Obtain an Order. In the Supreme Court, the court form is called a Notice of Family Claim. In the Provincial Court, the person who starts a court proceeding is called the ''Applicant''; in the Supreme Court, this person is the ''Claimant''.

Once a court proceeding has started, the other person can answer the claims being made and make new claims. In the Provincial Court, this answer is called a Reply. In the Supreme Court, two court forms can be used: a Response to Family Claim and a Counterclaim. In the Provincial Court and in the Supreme Court, the person answering a court proceeding is called the ''Respondent''.

Applicants and Respondents (in the Provincial Court), and Claimants and Respondents (in the Supreme Court), are called the ''parties'' to the court proceeding.

After the Respondent has filed a reply to the claim, both parties can ask the court to make an ''order'' about some or all of the issues the raised in the court proceeding. An order is a decision of a judge that requires someone to do something or not do something. For example, a court can make an order that a child live mostly with one party, an order that one party not harass the other, or an order that one party have the family car.

Orders can be made ''by consent'', which means that they are made with the agreement of both people. If the couple can't agree on the terms of the order, they must go to a hearing before a judge and have the judge make an order. There are two types of order: an ''interim order'', which is any order made before trial; and, a ''final order'', which is an order made at the end of a trial. A trial is the final hearing before the judge that concludes the court proceeding.

If you don't like the order you get from a judge, you can challenge the order before a higher level of court in a court proceeding called an ''appeal''. An order of the Provincial Court is appealed to the Supreme Court. An order of the Supreme Court is appealed to the Court of Appeal. You cannot appeal an order that you agreed to.

Over time, the terms of an order may need to be changed. If there has been a serious change in your circumstances or in the circumstances of the children since an order was made, you can go back to court and ask that the order be changed to suit the new circumstances. This is called ''varying'' an order.

'''Further Reading:

*The Legal System
*The Legal System > The Courts
*The Legal System > Starting an Action
*The Legal System > Defending an Action
*The Legal System > Interim Applications'''

==The Laws==

There are two kinds of law: laws made by the governments, called ''legislation'', ''statutes'' or ''acts''; and, laws made by the courts. Laws made by the courts are known as the ''common law'', ''precedent decisions'' or ''case law''. They come from the different law suits that the courts have heard over hundreds of years, and the decisions the courts made in those different court proceedings.

Legislation is made by the federal government and the provincial government. The two pieces of legislation that are the most important for family law in British Columbia are the federal ''Divorce Act'' and the provincial ''Family Law Act''. Each piece of legislation deals with different family law problems and applies to different kinds of relationships.

The ''Divorce Act'' only applies to people who are married or who used to be married to each other. It deals with:

#divorce;
#custody;
#access;
#child support; and,
#spousal support.

The ''Family Law Act'' applies to married spouses, unmarried spouses, and couples who are neither married spouses nor unmarried spouses and are perhaps just dating. This law deals with:

#guardianship;
#parental responsibilities and parenting time;
#contact;
#child support;
#spousal support;
#dividing family property and family debt;
#orders protecting people; and,
#orders protecting property.

Unmarried couples can only use the ''Family Law Act'' to ask for orders about the care of children, child support and orders protecting people. Married spouses and unmarried spouses can use the act to ask for orders about the care of children, child support and orders protecting people, as well as orders about spousal support, property and debt, and orders protecting property.

The Supreme Court can make orders under both the ''Divorce Act'' and the ''Family Law Act''. The Provincial Court can only make orders under the parts of the ''Family Law Act'' that don't deal with property.

This chart shows which law deals with which issue:

CHART

There is a bunch of other legislation that deals with family law problems, such as the ''Adoption Act'' (which deals with adoption), the ''Name Act'' (which deals with changing your name and your children's names), the ''Land Title Act'' (which has to do with land and houses), and the ''Vital Statistics Act'' (which has to do with registering births, deaths, marriages and divorces). The most important of these other laws is the Child Support Guidelines.

The Child Support Guidelines sets out the rules about how much child support should be paid according to the income of the person paying child support and the number of children child support is being paid for. For most people, the amount that should be paid is set out in a table at the end of the Guidelines. The Guidelines also sets out the rules about when child support can be paid in an amount different than what the tables say should be paid.

'''Further Reading:

*The Legal System
*The Legal System > The Law
*Legislation
*Child Support > The Guidelines'''

==The Care and Control of Children==

There are three things that parents must decide when their relationship ends: where the children will mostly live; how the parents will make decisions about the important events in the children's lives; and, how much time each parent will have with the children.

Custody sort of means where the children will live most of the time. Parents can share custody, called joint custody, or only one parent can have custody, called sole custody. Whether the parents have joint custody or sole custody has very little to do with how much time they each have with the children. Because of this, "custody" doesn't mean very much when both parents are in their children's lives.

Guardianship is all about parenting. It is about making decisions about where the children go to school, how they are treated when they get sick, whether they will play sports or take music lessons, and about the children's religion. Both parents can have joint guardianship or one parent can have sole guardianship. A parent with sole guardianship does not need to ask the other parent about these important decisions. When the parents have joint guardianship they must talk to each other and work together to make decisions about the children.

In many ways, guardianship is a lot more important than custody, since guardianship is all about raising the children. Guardianship is about parenting.

Access is the amount of time that each parent has with the children. Usually, access refers to the time that the parent with the least amount of time with the children has with the children. Any sort of access is possible. The children's time can be shared equally between the parents; a parent can have the children every other weekend; a parent can have the children for three days every week. Whatever arrangement you can think of, you can have. Access is also called parenting time, a parenting schedule or a parent's time with the children.

When the court must decided about custody, guardianship or access, the most important thing for the court is making a decision that is in the best interests of the children. The court isn't interested in what the parents want for themselves; the court is interested in how what a parent wants is or isn't in the best interests of the children.

Further Reading

Children > Custody
Children > Guardianship
Children > Access
Back to the top of this chapter.

VI. Child Support

Child support is normally paid by the parent who has the children for the least amount of time to the parent who has the children for the most amount of time. Child support is paid to help with the children's day-to-day living expenses, and covers a lot of things, from new clothes to school supplies to the children's share of the rent. Child support is not a fee a parent must pay to see the children. Child support has nothing to do with custody, guardianship or access, or whether a parent is a good parent or a bad parent.

Child support is almost always paid every month in the amount set out in the Child Support Guidelines. A parent's duty to pay child support does not end until the child turns 19. It can last longer than that if a child has an illness or disability that prevents the child from earning a living, or if the child is going to university or college full-time.

Normally a parent pays the exact amount of child support the Guidelines tables say should be paid. A parent can pay a smaller amount where the children's time is shared almost equally between the parents or when paying the amount required by the Guidelines would cause serious financial hardship.

The basic amount of child support is intended to cover most of the children's expenses. Some expenses, called extraordinary expenses, are not covered in this basic amount. Typically, extraordinary expenses are expenses like daycare and orthodontics — big, important expenses that most but not all children need.

Where the children have extraordinary expenses, the parents contribute to those expense in proportion to their incomes. For example, if one parent earns $30,000 per year and the other earns $20,000, the first parent would have to pay 60% of an extraordinary expense and the other would have to pay 40%.

The chapter Child Support > The Guidelines has calculators for child support and sharing children's extraordinary expenses.

Further Reading

Child Support
Child Support > The Guidelines
Back to the top of this chapter.

VII. Spousal Support

Spousal support is not paid just because a couple were married in a common-law relationship. Spousal support is only paid where a person is in financial need or deserves compensation because of:

financial decisions made during the relationship; or,
the financial consequences of the end of the relationship.
Financial decisions during a relationship can cause someone to be entitled to compensation if the couple decided that one of them should quit work and stay at home to raise the children and be a homemaker. Someone who stays at home may have to leave a job or a career, and it can be very difficult to return to work after being out of the workforce, particularly when the relationship was long and there is no career to return to.

The end of a relationship can cause someone to need financial help. After a couple separate, the same amount of income they had during the relationship now has to pay for two rent bills, two hydro bills and two grocery bills. When the couple were together, however, their combined incomes only had to pay for one rent bill, one hydro bill and one phone bill.

Spousal support is usually paid every month. The amount of spousal support that should be paid is usually an amount that the person with more money can afford to pay, with the money left over after that person's basic living expenses have been paid.

When a relationship was very long or the couple are older, spousal support can be paid for ever. When the couple is younger, spousal support is usually only paid for a specific amount of time. This is because the person getting support has an obligation to try to become financially independent from the person paying support.

The amount of spousal support that should be paid and the length of time support should be paid can also be calculated using the Spousal Support Advisory Guidelines. The Advisory Guidelines uses two formulas, one for when a couple has children and one for when they don't, that calculate how much support should be paid according to the length of the relationship and each party's annual income. There are three very important things to know about the Advisory Guidelines:

The Advisory Guidelines is not a law and there is no rule saying that the Advisory Guidelines formulas must be used. Despite this, lawyers and the court use the Advisory Guidelines almost all the time when spousal support is going to be paid.
The Advisory Guidelines is only used when some is proven to be entitled to receive support; if there is no entitlement the Advisory Guidelines don't apply.
The formulas the Advisory Guidelines describes are very complicated. In particular, the formulas that are used when a couple has children cannot be done without a computer program.
Only people who were married or in a common-law relationship can ask for spousal support. Common-law couples must ask for spousal support within one year of the date they separated; married couples can ask for support at any time after they have separated.

Further Reading

Spousal Support
Spousal Support > The Advisory Guidelines
Back to the top of this chapter.

VIII. Dividing Family Property

Married people are presumed to have a one-half interest in everything that is a family asset, regardless of who bought it or when it was bought. A family asset is any asset that was normally used by the family, such as the family home, the car, the couple's bank accounts and so forth. Family assets also include things like RRSPs and pensions.

Not all assets are family assets. Business assets, assets owned by a spouse's company, are not always family assets that can be shared. Other assets, like inheritances and court awards, are usually personal assets that are not divided.

A married person can sometimes be entitled to more than half of the family assets, especially if the marriage was really long and the person needs more help to be financially independent than spousal support will give. A married person can also be entitled to more than half of the family assets if the person brought most of those assets into the marriage and the marriage was short.

For married people, family assets are divided under the rules set out in the Family Relations Act. People who aren't married cannot use this law to divide their property. The rules in the act only apply to married couples. They do not apply to common-law couples or to other couples who are neither married nor common-law.

Unmarried couples, including common-law couples, who own something together are presumed to have equal interests in that thing. Unmarried couples can only get a share of property owned only by the other person under the rules of trust law. Trust law is very complicated, and unmarried couples almost never get the same share of the other person's property that they would have gotten if they were married.

Further Reading

Family Assets
Family Assets > Dividing Assets
Unmarried Couples > Common-Law Relationships
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IX. Separation and Divorce

You do not need a legal document in order to separate, and you don't need to see a lawyer or a judge to separate. You just leave the relationship or announce that it's over. There is no such thing as a "legal separation" in British Columbia.

For unmarried and common-law couples, their relationship is over the moment they separate. That's it, it's done! There is no such thing as a "common-law marriage," and common-law couples do not need to get divorced.

For a marriage to end, however, a married couple must divorce, and that means they must get a court order saying that they are are divorced. A married couple can be separated for many years but still be married if they haven't gotten a divorce order.

Sometimes married people don't get around to getting a divorce for many, many years. That's fine. The only thing a separated married person can't do that an unmarried person can do is marry again. Separated married people can date someone else, live with someone else, be in a common-law relationship with someone else, have property in their own name, have bank accounts and credit cards in their own name and so on.

There are three reasons why a court will make a divorce order:

the couple have separated and have stayed separated for more than one year;
one spouse has had sex with someone other than his or her spouse, called adultery; or,
one spouse has been verbally, emotionally or physically abusive to his or her spouse, which is what the Divorce Act means by cruelty.
To get a divorce order, you have to start a law suit. You don't have to ask the court for anything else except a divorce. When a couple agrees to get a divorce, they can get a divorce using the do-it-yourself desk order divorce process, and they won't have to go in front of a judge ever.

Further Reading

Marriage & Divorce > Separation
Unmarried Couples
Marriage & Divorce > Separating Emotionally
Marriage & Divorce > Divorce
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X. Family Law Agreements

A family law agreement is a contract, like the contract you might have with your landlord, your employer, or the contract you might have if you lease a car. There are three kinds of agreement a couple can make in family law:

Cohabitation agreements, agreements that a couple make when they are living together or plan to living together.
Marriage agreements, which a couple may want if they are going to be getting married.
Separation agreements, which a married or common-law couple might make after their relationship ends.
Cohabitation agreements and marriage agreements are for couples who are just starting a relationship. These sorts of agreements can talk about how the relationship will be managed (who will pay the bills, will there be a joint bank account or a joint credit card, or who will do what parts of the housework), but most often they talk about what will happen if the relationship ends. These agreements are usually meant to stop a couple from fighting after a relationship ends by setting out who will get what right from the start.

The law does not require that a couple make a cohabitation agreement or a marriage agreement when they start to live together or marry. You do not have to sign an agreement if you don't want to.

Cohabitation agreements and marriage agreements aren't for everyone. People who are bringing a lot of property, money or children into a relationship may want a cohabitation agreement or a marriage agreement. People who don't have property or children, are young, and expect to have a long-term relationship usually don't need an agreement.

Separation agreements are made after a relationship has ended. They set out how a couple have agreed to deal with things like the care of children, child support and spousal support, and how the family assets will be shared. Separation agreements don't have to cover all the family law problems a couple has. They can deal with just some of those problems and leave the rest for the court to decide.

Normally a couple talk together about the problems and negotiate an agreement that they are both happy with. It is very rare for just one person to make the separation agreement without talking to the other person. You do not have to sign a separation agreement if you don't want to.

No matter what kind of family law agreement you have signed, you both expect that each of you will follow the agreement, and that the court will enforce the agreement if you don't follow the agreement. The court will generally respect an agreement that a couple willingly signed, as long as the agreement was fair and neither person misled the other person about something important, like money or property.

Further Reading

Family Agreements
Alternatives to Court
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XI. Information for People who are New to Canada

In Canada, men and women have exactly the same rights. There is no difference between the rights a man has and the rights that a women has, whether they are married to each other or not. Men do not have the right to control women or tell them what they may and may not do, even if a couple are married.

Our courts are open to everybody who lives in Canada, not to poeple who have Canadian citizenship. People who are new to Canada can make a claim in court, regardless of their citizenship status, and regardless of whether they are a landed immigrant or not.

There is no law that requires someone who is unhappy in a marriage to stay in that marriage. If someone wants to leave a relationship, he or she can, and that person does not need the permission or agreement of the other spouse to leave.

In Canada, there is no requirement for either dowry or dower to be paid when a couple marries. Even if a religion requires such a payment, the religious duty is not legally binding in Canada.

While arranged marriages are fairly common, the parties must agree to the marriage of their own free will. There is no law that allows someone to be forced to marry someone else. An agreement between relatives about the marriage is not legally binding on the people who are supposed to be married.

When one spouse sponsors another spouse to come to Canada, that person will usually sign a "sponsorship agreement" with the government. That agreement requires the sponsor to support the person coming to Canada, whether they stay married or separate or divorce. This agreement is only binding between the sponsor and the government. If the person coming to Canada needs spousal support, for example, he or she will have ask the court for an order that spousal support be paid.

Separation does not automatically mean that someone new to Canada will have to leave the country. People who are permanent residents, for example, will be allowed to stay, regardless of what is happening in their relationship with their sponsors. You should, however, speak to an immigration lawyer just to be sure.

In Canada you must have a court order to divorce and legally end a marriage. Religious divorces are not recognized in Canada. The decisions of religious tribunals about how a separated couple will share their assets or manage the care and control of their children are not recognized in British Columbia.

Further Reading

Other Family Law Issues

{{JP Boyd on Family Law Navbox|type=started}}

Changing Orders in Family Matters

2013-03-05T13:28:30Z

96.48.61.138: /* Spousal Support */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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.

====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: jurisdiction 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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

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 guardian
*s. 41: parental responsibilities
*s. 42: parenting time
*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 because a child has grown up and has her own opinions or perhaps because a parent 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 thing 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 might 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 an order says this:

<blockquote>"Sally will have parenting time with the child from Friday to Sunday."</blockquote>

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:

<blockquote>"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."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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..."</blockquote>

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 twelve 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 which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

====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 parent, so that more time with the child was required to restore the 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 eleven or twelve 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.

==Child Support==

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 action started, no matter which province's courts made the original order. 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:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>

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 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 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:

<blockquote><tt>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:</tt></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote>

====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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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 support
*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:

<blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote>
<blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote>
<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote>

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 is 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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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: arrears of support
*s. 216: interim orders

==Spousal Support==

A final order for spousal support is an order made following the trial of a court proceeding or made by the consent of the parties as a settlement of the proceeding. Changing an order is called ''varying'' an order.

In general, a final order is just that, final. Without an appeal, 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.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, ''Gill-Sager v. Sager'', has called into question just how "final" final orders about spousal support should be. In this 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 that it 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 ''T. (T.L.A.) v. T. (W.W.)'', 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 ''G. (L.) v. B. (G.)'', 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.

STOPPED...must add FLA test

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Changing Orders in Family Matters

2013-03-05T05:26:03Z

96.48.61.138: /* Orders about the Care of Children */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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.

====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: jurisdiction 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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

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 guardian
*s. 41: parental responsibilities
*s. 42: parenting time
*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 because a child has grown up and has her own opinions or perhaps because a parent 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 thing 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 might 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 an order says this:

<blockquote>"Sally will have parenting time with the child from Friday to Sunday."</blockquote>

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:

<blockquote>"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."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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..."</blockquote>

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 twelve 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 which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

====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 parent, so that more time with the child was required to restore the 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 eleven or twelve 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.

==Child Support==

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 action started, no matter which province's courts made the original order. 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:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>

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 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 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:

<blockquote><tt>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:</tt></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote>

====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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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 support
*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:

<blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote>
<blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote>
<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote>

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 is 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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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: arrears of support
*s. 216: interim orders

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

{{JP Boyd on Family Law Navbox|type=chapters}}

Changing Orders in Family Matters

2013-03-05T05:13:23Z

96.48.61.138: /* Statutory Provisions */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

===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 because a child has grown up and has her own opinions or perhaps because a parent 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 thing 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 might 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 an order says this:

<blockquote>"Sally will have parenting time with the child from Friday to Sunday."</blockquote>

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:

<blockquote>"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."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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..."</blockquote>

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 twelve 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 which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

====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 parent, so that more time with the child was required to restore the 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 eleven or twelve 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.

==Child Support==

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 action started, no matter which province's courts made the original order. 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:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>

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 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 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:

<blockquote><tt>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:</tt></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote>

====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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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 support
*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:

<blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote>
<blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote>
<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote>

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 is 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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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: arrears of support
*s. 216: interim orders

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

{{JP Boyd on Family Law Navbox|type=chapters}}

Changing Orders in Family Matters

2013-03-05T04:53:55Z

96.48.61.138: /* Family Law Act Orders */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

===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 because a child has grown up and has her own opinions or perhaps because a parent 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 thing 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 might 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 an order says this:

<blockquote>"Sally will have parenting time with the child from Friday to Sunday."</blockquote>

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:

<blockquote>"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."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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..."</blockquote>

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 twelve 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 which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

====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 parent, so that more time with the child was required to restore the 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 eleven or twelve 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.

==Child Support==

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 action started, no matter which province's courts made the original order. 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:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>

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 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 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:

<blockquote><tt>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:</tt></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote>

====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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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 support
*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:

<blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote>
<blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote>
<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote>

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 is 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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====Statutory Provisions====

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

STOPPED

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Changing Orders in Family Matters

2013-03-05T04:50:16Z

96.48.61.138: /* Child Support */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

===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 because a child has grown up and has her own opinions or perhaps because a parent 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 thing 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 might 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 an order says this:

<blockquote>"Sally will have parenting time with the child from Friday to Sunday."</blockquote>

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:

<blockquote>"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."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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..."</blockquote>

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 twelve 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 which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

====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 parent, so that more time with the child was required to restore the 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 eleven or twelve 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.

==Child Support==

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 action started, no matter which province's courts made the original order. 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:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>

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 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 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:

<blockquote><tt>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:</tt></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote>

====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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====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 support
*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:

<blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote>
<blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote>
<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote>

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, since the last order or if new evidence is 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 in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

*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.

====Statutory Provisions====

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

STOPPED

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

{{JP Boyd on Family Law Navbox|type=chapters}}

Changing Orders in Family Matters

2013-03-05T04:39:34Z

96.48.61.138: /* Child Support */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

===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 because a child has grown up and has her own opinions or perhaps because a parent 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 thing 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 might 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 an order says this:

<blockquote>"Sally will have parenting time with the child from Friday to Sunday."</blockquote>

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:

<blockquote>"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."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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..."</blockquote>

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 twelve 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 which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

====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 parent, so that more time with the child was required to restore the 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 eleven or twelve 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.

==Child Support==

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 resident in the province at the time the action started, no matter which province's courts made the original order. 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:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>

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 occured 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 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 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 may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====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 support
s. 17: variation proceedings
Back to the top of this chapter.

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties;
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
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 unfair.

====Financial Statements====

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====Statutory Provisions====

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

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

{{JP Boyd on Family Law Navbox|type=chapters}}

Changing Orders in Family Matters

2013-03-05T04:33:55Z

96.48.61.138: /* Common Problems with Orders for Access, Parenting Time and Contact */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

===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 because a child has grown up and has her own opinions or perhaps because a parent 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 thing 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 might 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 an order says this:

<blockquote>"Sally will have parenting time with the child from Friday to Sunday."</blockquote>

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:

<blockquote>"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."</blockquote>

Even better would be an order or agreement that says:

<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
<blockquote>"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..."</blockquote>

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 twelve 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 which supports the allegations. Needs of the child assessments are discussed in more detail in _______ .

====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 parent, so that more time with the child was required to restore the 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 eleven or twelve 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.

==Child Support==

===''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 resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.

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 judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer 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 occured 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 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 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 may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====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 support
s. 17: variation proceedings
Back to the top of this chapter.

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties;
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
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 unfair.

====Financial Statements====

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====Statutory Provisions====

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

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Changing Orders in Family Matters

2013-03-05T03:48:24Z

96.48.61.138: /* Family Law Act Orders */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

===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.

Say an order or agreement says this:

"Sally will have access to the child from Friday to Sunday."
When exactly does Sally's access 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 or agreement 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 the terms of access.

====Reducing Access====
Cases where an order or agreement for access has been varied to reduce the amount of access include circumstances such as:

the custodial parent has moved far enough away as to make the original access schedule impossible to comply with;
where a mature child over the age of twelve or so has expressed a wish not to see the parent;
where a non-custodial parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
where the parents' relationship has worsened to the point that they can no longer co-operate;
where a non-custodial parent has attempted to interfere with the child's relationship with the custodial parent; or,
where the access 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 which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.

====Increasing Access====

Of course, orders for access can also be changed to increase the amount of time a non-custodial parent has with the child. Circumstances where this has happened include:

where the custodial parent was interfering with the child's relationship with the non-custodial parent, so that more access was required to restore the relationship;
where the custodial parent was interfering with and unreasonably limiting the access provided to the other parent in an order or agreement;
where a child is older and able to spend more time away from the custodial parent; or,
where a child over the age of eleven or twelve or so has expressed a wish to see more of the other 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 or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Child Support==

===''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 resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.

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 judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer 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 occured 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 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 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 may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====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 support
s. 17: variation proceedings
Back to the top of this chapter.

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties;
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
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 unfair.

====Financial Statements====

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====Statutory Provisions====

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

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Changing Orders in Family Matters

2013-03-05T03:47:19Z

96.48.61.138: /* Family Law Act Orders */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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:

<blockquote><tt>Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.</tt></blockquote>

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is just too new.

===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.

Say an order or agreement says this:

"Sally will have access to the child from Friday to Sunday."
When exactly does Sally's access 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 or agreement 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 the terms of access.

====Reducing Access====
Cases where an order or agreement for access has been varied to reduce the amount of access include circumstances such as:

the custodial parent has moved far enough away as to make the original access schedule impossible to comply with;
where a mature child over the age of twelve or so has expressed a wish not to see the parent;
where a non-custodial parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
where the parents' relationship has worsened to the point that they can no longer co-operate;
where a non-custodial parent has attempted to interfere with the child's relationship with the custodial parent; or,
where the access 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 which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.

====Increasing Access====

Of course, orders for access can also be changed to increase the amount of time a non-custodial parent has with the child. Circumstances where this has happened include:

where the custodial parent was interfering with the child's relationship with the non-custodial parent, so that more access was required to restore the relationship;
where the custodial parent was interfering with and unreasonably limiting the access provided to the other parent in an order or agreement;
where a child is older and able to spend more time away from the custodial parent; or,
where a child over the age of eleven or twelve or so has expressed a wish to see more of the other 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 or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Child Support==

===''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 resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.

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 judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer 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 occured 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 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 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 may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====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 support
s. 17: variation proceedings
Back to the top of this chapter.

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties;
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
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 unfair.

====Financial Statements====

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====Statutory Provisions====

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

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Changing Orders in Family Matters

2013-03-05T03:38:04Z

96.48.61.138: /* Divorce Act Orders */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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'' describes the things that 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.

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 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 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>

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 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.

In situations of sole custody and joint guardianship, the court may order a change to sole guardianship where the parties simply cannot get along well enough to share parenting decisions. In general, a change from joint to sole guardianship will be ordered where the parents' relationship has worsened to the point that they can no longer cooperate effectively in the best interests of the children.

The court may also change an order for sole guardianship to an order for joint guardianship where the parent with sole guardianship has refused to keep the other parent involved in the child's life or up to date on important events in the child's life.

In situations of sole custody and sole guardianship, guardianship may be changed when the order or agreement for custody is changed, that is, where custody changes from one parent to the other, or where the sole custody arrangement is changed to joint custody.

Orders or agreements for joint guardianship might be changed if:

a parent is refusing to keep the other parent up to speed on important issues and events in the child's life;
the parents are persistently unable to agree on important decisions about the child;
a parent is intentionally giving false information about the child to the other parent; or,
the parents' views about raising the children are fundamentally opposed to each other about something very important, like medical care or religious instruction.
Orders or agreements for sole guardianship might be changed if:

the parent with sole guardianship has a history of making poor decisions;
the parent with sole guardianship is concealing important developments in the child's life from the other parent; or,
the parent without guardianship becomes capable of cooperating with the parent with sole guardianship.
Back to the top of this chapter.

====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.

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.

===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.

Say an order or agreement says this:

"Sally will have access to the child from Friday to Sunday."
When exactly does Sally's access 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 or agreement 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 the terms of access.

====Reducing Access====
Cases where an order or agreement for access has been varied to reduce the amount of access include circumstances such as:

the custodial parent has moved far enough away as to make the original access schedule impossible to comply with;
where a mature child over the age of twelve or so has expressed a wish not to see the parent;
where a non-custodial parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
where the parents' relationship has worsened to the point that they can no longer co-operate;
where a non-custodial parent has attempted to interfere with the child's relationship with the custodial parent; or,
where the access 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 which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.

====Increasing Access====

Of course, orders for access can also be changed to increase the amount of time a non-custodial parent has with the child. Circumstances where this has happened include:

where the custodial parent was interfering with the child's relationship with the non-custodial parent, so that more access was required to restore the relationship;
where the custodial parent was interfering with and unreasonably limiting the access provided to the other parent in an order or agreement;
where a child is older and able to spend more time away from the custodial parent; or,
where a child over the age of eleven or twelve or so has expressed a wish to see more of the other 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 or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Child Support==

===''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 resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.

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 judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer 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 occured 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 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 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 may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====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 support
s. 17: variation proceedings
Back to the top of this chapter.

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties;
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
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 unfair.

====Financial Statements====

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====Statutory Provisions====

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

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Changing Orders in Family Matters

2013-03-04T13:23:21Z

96.48.61.138: /* Vague Access Arrangements */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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 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>

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 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.

In situations of sole custody and joint guardianship, the court may order a change to sole guardianship where the parties simply cannot get along well enough to share parenting decisions. In general, a change from joint to sole guardianship will be ordered where the parents' relationship has worsened to the point that they can no longer cooperate effectively in the best interests of the children.

The court may also change an order for sole guardianship to an order for joint guardianship where the parent with sole guardianship has refused to keep the other parent involved in the child's life or up to date on important events in the child's life.

In situations of sole custody and sole guardianship, guardianship may be changed when the order or agreement for custody is changed, that is, where custody changes from one parent to the other, or where the sole custody arrangement is changed to joint custody.

Orders or agreements for joint guardianship might be changed if:

a parent is refusing to keep the other parent up to speed on important issues and events in the child's life;
the parents are persistently unable to agree on important decisions about the child;
a parent is intentionally giving false information about the child to the other parent; or,
the parents' views about raising the children are fundamentally opposed to each other about something very important, like medical care or religious instruction.
Orders or agreements for sole guardianship might be changed if:

the parent with sole guardianship has a history of making poor decisions;
the parent with sole guardianship is concealing important developments in the child's life from the other parent; or,
the parent without guardianship becomes capable of cooperating with the parent with sole guardianship.
Back to the top of this chapter.

====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.

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.

===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.

Say an order or agreement says this:

"Sally will have access to the child from Friday to Sunday."
When exactly does Sally's access 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 or agreement 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 the terms of access.

====Reducing Access====
Cases where an order or agreement for access has been varied to reduce the amount of access include circumstances such as:

the custodial parent has moved far enough away as to make the original access schedule impossible to comply with;
where a mature child over the age of twelve or so has expressed a wish not to see the parent;
where a non-custodial parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
where the parents' relationship has worsened to the point that they can no longer co-operate;
where a non-custodial parent has attempted to interfere with the child's relationship with the custodial parent; or,
where the access 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 which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.

====Increasing Access====

Of course, orders for access can also be changed to increase the amount of time a non-custodial parent has with the child. Circumstances where this has happened include:

where the custodial parent was interfering with the child's relationship with the non-custodial parent, so that more access was required to restore the relationship;
where the custodial parent was interfering with and unreasonably limiting the access provided to the other parent in an order or agreement;
where a child is older and able to spend more time away from the custodial parent; or,
where a child over the age of eleven or twelve or so has expressed a wish to see more of the other 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 or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Child Support==

===''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 resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.

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 judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer 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 occured 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 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 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 may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====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 support
s. 17: variation proceedings
Back to the top of this chapter.

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties;
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
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 unfair.

====Financial Statements====

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====Statutory Provisions====

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

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Changing Orders in Family Matters

2013-03-04T13:22:04Z

96.48.61.138: /* Orders about the Care of Children */

{{JP Boyd on Family Law TOC}}

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.

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.

'''DRAFT'''

==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 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 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 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 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:

<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>
<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 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>

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 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.

In situations of sole custody and joint guardianship, the court may order a change to sole guardianship where the parties simply cannot get along well enough to share parenting decisions. In general, a change from joint to sole guardianship will be ordered where the parents' relationship has worsened to the point that they can no longer cooperate effectively in the best interests of the children.

The court may also change an order for sole guardianship to an order for joint guardianship where the parent with sole guardianship has refused to keep the other parent involved in the child's life or up to date on important events in the child's life.

In situations of sole custody and sole guardianship, guardianship may be changed when the order or agreement for custody is changed, that is, where custody changes from one parent to the other, or where the sole custody arrangement is changed to joint custody.

Orders or agreements for joint guardianship might be changed if:

a parent is refusing to keep the other parent up to speed on important issues and events in the child's life;
the parents are persistently unable to agree on important decisions about the child;
a parent is intentionally giving false information about the child to the other parent; or,
the parents' views about raising the children are fundamentally opposed to each other about something very important, like medical care or religious instruction.
Orders or agreements for sole guardianship might be changed if:

the parent with sole guardianship has a history of making poor decisions;
the parent with sole guardianship is concealing important developments in the child's life from the other parent; or,
the parent without guardianship becomes capable of cooperating with the parent with sole guardianship.
Back to the top of this chapter.

====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.

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.

===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.

Say an order or agreement says this:

"Sally will have access to the child from Friday to Sunday."
When exactly does Sally's access 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 or agreement 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 the terms of access.

====Reducing Access====
Cases where an order or agreement for access has been varied to reduce the amount of access include circumstances such as:

the custodial parent has moved far enough away as to make the original access schedule impossible to comply with;
where a mature child over the age of twelve or so has expressed a wish not to see the parent;
where a non-custodial parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
where the parents' relationship has worsened to the point that they can no longer co-operate;
where a non-custodial parent has attempted to interfere with the child's relationship with the custodial parent; or,
where the access 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 which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.

====Increasing Access====

Of course, orders for access can also be changed to increase the amount of time a non-custodial parent has with the child. Circumstances where this has happened include:

where the custodial parent was interfering with the child's relationship with the non-custodial parent, so that more access was required to restore the relationship;
where the custodial parent was interfering with and unreasonably limiting the access provided to the other parent in an order or agreement;
where a child is older and able to spend more time away from the custodial parent; or,
where a child over the age of eleven or twelve or so has expressed a wish to see more of the other 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 or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

==Child Support==

===''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 resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.

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 judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer 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 occured 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 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 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 may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====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 support
s. 17: variation proceedings
Back to the top of this chapter.

===Family Law Act Orders===

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties;
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
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 unfair.

====Financial Statements====

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

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.

====Statutory Provisions====

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

s. 1: definitions
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings

==Spousal Support==

A final order for spousal support is an order made following the trial of an action or made by the agreement of the parties as a settlement of the action. Changing an order is called "varying" an order.

In general, a final order is just that, final. Without an appeal, the final order represents the end of an action and cannot be changed. This rule applies whether the order is for the dismissal of a party's claim for spousal support or for the payment of spousal support.

===Changing an Order Refusing Support===

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.

A 2002 case of the British Columbia Court of Appeal, Gill-Sager v. Sager, has called into question just how "final" final orders about spousal support should be. In this 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 a final order should not say that a claim for support is dismissed but is only adjourned generally.

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 debilitating 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 Granting Support===

When a party seeks to vary a final order for spousal support, 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 T. (T.L.A.) v. T. (W.W.), 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 G. (L.) v. B. (G.), 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.

Section 17 of the Divorce Act provides, in part, as follows:

(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) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(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 96(1) of the Family Relations Act states that:

If an application is made to vary or rescind a [spousal support order], the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
To put it another way, both the Divorce Act and the Family Relations Act require that there be a material change in circumstances with respect to either or both parties' needs, means, financial circumstances and ability to pay spousal support before the court can consider an application to vary a spousal support order. Section 17(7) of the Divorce Act sets out the considerations a court should apply in making a new spousal support order, once the material change has been proven. These mirror the criteria the court is required to take into account in making the original order, set out in s. 15.2(6) of the act.

Note that the publication of the Spousal Support Advisory Guidelines is not a material change in circumstances that will entitle someone to apply to vary an order for spousal support.

====Changing Reviewable Orders for Support====

"Reviewable orders" for spousal support are orders that impose an indefinite obligation to pay spousal support, but allow the order to be reassessed every now and then. Reviewable orders will 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 2010, and continuing on the first day of each and every month thereafter, and this order may be reviewed on the application of either party on or after 1 June 2014."
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 make an application with respect to the order for spousal support. The payor may wish to have the amount of support reduced or have his or her obigation 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 re-evaluated, the existing order continues to be in effect.

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 hearing de novo, a fresh hearing of the issue as if the question of spousal support were being determined for the first time.

There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. The criteria that the court will apply in deciding whether spousal support is payable are those used in making the initial decision; see the earlier chapter in this section, Spousal Support > Basic Principles.

====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 a strong presumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of Miglin v. Miglin, 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power?
If the circumstances that the order was entered into were reasonable, the the court must consider whether the order met the objectives for spousal support set out in s. 15.2 of the Divorce Act (or in the Family Relations Act) at the time it was made.
If the order did meet the objectives set out in the Divorce Act (or the Family Relations Act), does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act (or the Family Relations Act)?
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under 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 order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the act.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page

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Enforcing Family Law Agreements

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When a party to a family law agreement doesn't fulfil his or her obligations under the agreement, that person is said to be in breach of the agreement or in breach of contract. In family law, unlike commercial contract law, a breach is considered to be limited to the particular term of the agreement which was disobeyed rather than to the agreement as a whole. As a result, the innocent party is not allowed to treat an agreement as broken or cancelled because the other person has breached it, no matter how important the part of the agreement that was breached might be.

When a term of an agreement is breached, the innocent party is entitled to take steps to compel the other party to comply with the agreement. This is called enforcing the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement is breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with access, are much harder to deal with.

==Filing Agreements in Court==

The Family Relations Act allows family agreements to be filed in court. Once an agreement is filed, the parts dealing with children, child support and spousal support can be enforced as if the agreement were an order of the court. This is not to say that a filed agreement is an order of the court, only that it can be enforced as if it were an order.

Two sections of the act are relevant:

121 (1) In this section:
"child" means a person who is acknowledged in a written agreement filed under this section to be the responsibility of a party to the agreement and who is
(a) under the age of 19 years, or
(b) 19 years of age or older and, in relation to the party to the agreement, is unable, because of illness, disability or other cause, to withdraw from that party's charge or to obtain the necessaries of life;
"parent" means a person who acknowledges in a written agreement filed under this section a responsibility for a child;
"spouse" means a spouse as described in paragraph (a), (b) or (c) of the definition of "spouse" in section 1 (1) and includes a person who acknowledges in a written agreement filed under this section that he or she is or was a spouse of another person, whether or not they are or were married.
(2) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
is filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(4) A provision that is referred to in subsection (2) and is contained in a written agreement filed under this section may, at any time, be varied or rescinded
(a) by a new written agreement filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, or
(b) by the Provincial Court, on application and subject to sections 20 and 96.
(5) The filing of a written agreement under this section does not
(a) restrict or prevent a court from making an order for the same relief as is provided for in the agreement, or
(b) prevent the agreement from being filed or enforced in the Supreme Court under section 122.
122 (1) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
is filed in the Supreme Court in accordance with the Rules of Court, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(3) The filing of a written agreement under this section does not prevent the agreement from being filed, enforced, varied or rescinded in the Provincial Court under section 121.
In other words, written agreements can be filed in either the Provincial (Family) Court or the Supreme Court and be enforced as if they were orders of those courts, but only the Provincial (Family) Court can vary an agreement.

In my view, family law agreements should be filed in court as a matter of course where there are any concerns at all about a party's ongoing compliance with an agreement.

==Custody of Children==

Someone who interferes with a parent's right to have custody of his or her child may be guilty of a criminal offence under the Canadian Criminal Code, in addition to being liable for the breach of a family agreement. This sort of interference with a custodial parent's rights is called abduction.

Section 128 of the Family Relations Act makes it an offence, under the provincial Offence Act, to interfere with a right of custody or access given by a court order.

The Criminal Code sanctions against abduction apply throughout Canada. Canada is also a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This convention allows for the apprehension and return of children between nations that have signed the accord.

Ordinarily, where a party can prove that they have custody of the child, usually by showing a copy of the separation agreement, the police will usually at least speak to the abducting parent, if not actually retrieve the child. In situtations of joint custody, however, the police are a lot less likely to intervene as it may not be clear to them who has the legal right to have the child with them.

There are a number of remedies available that do not include the involvement of the police. Where the location of the party who has taken the child is known, the first step is to apply to court for an order that the child be immediately returned to the custodial parent. Such an order can include a "peace officer enforcement" clause, a clause which requires any police officer in the province to assist in the return of the child. This application can be made on an ex parte basis, that is, without notifying the other party of the application. Other orders such as injunctions or restraining orders may also be sought for additional protection.

==Access to Children==

This is one of the most difficult terms to enforce because the remedies available to the innocent party are so limited. Firstly, if the agreement dealing with access has been filed in court, the innocent party can make a court application to force compliance with the agreement by making an application for the other party to be found in contempt of court. Secondly, if the agreement does not set out specific times for the access to take place, the innocent party can make an application for access to be specified in the form of a court order.

Most conflicts between parents about access start with agreements that are vague. Agreements for "liberal and generous access" are notorious for causing problems, since they don't set out what exactly liberal and generous access means. Even an agreement for access "from Friday evening until the following Sunday evening" can cause problems because it isn't clear who is doing the picking-up and dropping-off and no specific times are set for the exchange of the child.

The easiest way to address problems like this are to apply for an order making the terms of access more specific, such as "John will pick the child up from school on every other Friday and shall return the child to Jane on the following Sunday at 7:00pm." Every aspect of access can be specified in great detail.

Note that little can be done to enforce access with respect to a parent who is refusing to exercise his or her access rights under an agreement. In general, the innocent parent winds up having no choice but to adopt a "use it or lose it" attitude, on the basis that the breaching parent should either see the child more reliably to give the child a sense of stability or not see the child at all.

==Child and Spousal Support==

When a payor falls behind in his or her support payments or stops making them altogether, he or she is said to be in arrears of support. This is a breach of the separation agreement which requires the payor to make his or her support payments. Support is usually the easiest part of an agreement to enforce.

Once an agreement is filed in court, either in the Provincial (Family) Court under s. 121 of the Family Relations Act or in the Supreme Court under s. 122, the parts of the agreement dealing with spousal or child support can be enforced by the provincial Family Maintenance Enforcement Program. This is a free service for the party entitled to collect support and which can be very effective in forcing a payor to meet his or her obligations and monitor ongoing payments.

See the chapters Child Support > Arrears of Support and Spousal Support > Arrears of Support for more information. Additional contact information for FMEP is provided in the Resources & Links section.

==Property==

Where an agreement provides for the specific division or ownership of assets, action can be taken to enforce the agreement in the Supreme Court for breach of contract. Such an application would typically be for an order that the breaching party surrender the property or be compelled to transfer the title of the asset to the innocent party.

An application for an order that the agreement be enforced as a contract is called an application for the "specific performance" of the agreement: the applicant want the breaching party to be forced to live up to the agreement and take the steps he or she is required to take to complete the agreement.

Both married and unmarried couples can apply to court to enforce the property provisions of a separation agreement.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Changing Family Law Agreements

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After an family law agreement has been signed, four things can happen: the parties follow the agreement and everything continues as it should; the parties agree to do something other than what the agreement requires; circumstances change and the agreement must also change; or, someone refuses to follow the agreement and it must be enforced by the courts.

This page will focus on separation agreements. It will discuss how agreements can be changed without going to court, how agreements can be changed with the intervention of the court, and how agreements can be enforced by the courts.

==Changing Agreements by Agreement==

There are always two ways of doing something, the hard way or the easy way. In family law, the easy way usually involves discussion and negotiation. The hard way usually results in a court battle. This segment will deal with the easy way; the hard way is dealt with in the following segment which will discuss changing agreements with the intervention of the court.

Any family law agreement can be changed at any time, as long as the parties to the agreement consent to the change. If they can't agree on the change or on the terms of the change, the party who wants the change may have to go to court if the change is important enough. Changing an agreement is also called amending the agreement or varying the agreement.

===Amending an Agreement by Consent===

Any agreement can be amended by a later agreement. If the parties to an agreement both believe that their original agreement needs to be amended, and both of the parties agree on exactly how it should be adjusted, the parties can draw up a second agreement variously called an amendment agreement, an amending agreement or an addendum agreement to the original agreement.

An agreement amending an agreement must refer to the original agreement and is usually titled something like "Amendment to the Separation Agreement Executed on 1 April 2008." Amending agreements are usually very short as the idea is to change one particular part of an agreement rather than to rewrite the original agreement in its entirety. The amending agreement should specify which particular paragraph of the original agreement is being changed, and then set out the new text of that paragraph:

2. The parties agree that Paragraph 23 of the Agreement executed on 1 April 2008 will be cancelled and replaced with the following:
Sally will have parenting time with the children beginning on Tuesdays at 4:00pm or the end of school to the following Wednesday at 9:00am or the start of school, whichever is earlier.
3. Sally's income is $45,000 per year as at the date of the execution of this Amending Agreement. The parties agree that Sally's child support obligation, set out at Paragraph 28 of the Agreement executed on 1 April 2008, will be $684 per month, commencing on the first day of the month followng the execution of this Amending Agreement.
Just like the original agreement, the amending agreement must be formally executed by both parties.

===Amending an Agreement through Negotiation===

A well-written agreement will usually set out a way that the parties will resolve disputes arising from the agreement. Sometimes this mechanism requires that the parties to go to court; sometimes this mechanism prescribes some other means of dispute resolution, such as mediation or arbitration.

Mediation is, in general, the best option if simple negotiation doesn't get you anywhere. In mediation, the parties attempt to negotiate a resolution to their dispute with the help of a third party, the mediator, who is skilled in family law issues and works with the parties to get them to an agreement.

Mediation is not always appropriate, particularly where the problem is limited to one particular term of the agreement and it seems that neither party is willing to bend on the matter. In such cases, arbitration limited to that one issue should be considered since an arbitrator's job is to impose a settlement on the parties, after listening to both sides, and it's cheaper to arbitrate rather than to litigate.

Whatever method is chosen, it is usually better for the parties to arrive at a resolution of the problem themselves without having to go to court. This way the power remains in the hands of the people whose lives are affected by the agreement and who must live with it on a daily basis, rather than in the hands of someone else, a judge, who may very well make a decision no one is happy with.

See the section Alternatives to Court for more information on mediation and arbitration.

==Judicial Intervention==

In general, the court will be reluctant to meddle with a reasonable separation agreement. In fact, the Court of Appeal for British Columbia has said that separation agreements should be treated by the courts with "great deference." This is because a separation agreement is a private contract between two parties which is the product of an often lengthy process of negotiation, and the courts are usually unwilling to disturb an agreement which two people freely entered into, without a very good reason for doing so. The courts will be especially reluctant to alter a final order that was the product of a separation agreement.

The questions that the court will want answered are: What has changed between the date of the execution of the agreement such that the agreement should be changed despite the objections of the other party? Is there some aspect of the agreement or how the agreement was made that demands the intervention of the court? Was there some fundamental unfairness surrounding the negotiation of the agreement such that the whole agreement should be set aside?

A party asking the court to interfere with an agreement must, in general, show that

the agreement is fundamentally unfair or that it would be unfair to hold the party to the terms of the agreement, or
circumstances have changed significantly since agreement was executed such that it is no longer appropriate
before the court will consider making an order different than the terms set out in an agreement.

The Supreme Court of Canada discussed the fairness issue in depth in a 2009 case called Rick v. Brandsema. In this case, the court talks about how family law agreements are different from commercial agreements because of the unique emotional circumstances surrounding the negotiation of family law agreements — when you're signing a car lease, you're not doing it when you've just ended a long cohabiting relationship with the dealer. In Rick, the court emphasized that fairness means:

bargaining in the utmost good faith;
being completely honest and forthcoming during negotiations;
making full and complete financial disclosure, whether full financial disclosure has been requested or not; and,
not taking advantage of someone at a time of emotional or psychological weakness or vulnerability.
If an agreement wasn't fairly negotiated, it may be vulnerable to challenge later on down the road.

===The Validity of Agreements===

Just like a commercial contract, the validity of a family agreement can be challenged on one or more of the following grounds:

the agreement was not freely entered into, in other words if one or both of the parties were under duress or coercion when the agreement was negotiated or executed;
the agreement is "unconscionable," in other words if the agreement is obviously and seriously unfair to one of the parties;
one of the parties entered into the agreement without the benefit of independant legal advice and did not fully understand what the agreement meant;
one of the parties entered into the agreement without full disclosure being made by the other party or based on incorrect information supplied by the other party; or,
one of the parties entered into the agreement or a part of the agreement by mistake.

====Duress, Coercion, Unconscionability and Mistake====

The courts won't enforce an agreement — that is, they won't compel the parties to abide by an agreement — where one of the parties was forced or pressured to enter into the agreement. An agreement must be entered into freely and voluntarily.

The courts won't enforce an agreement where one of the parties used a position of power to achieve an unfair agreement. This can include threats and manipulation, as well as the execution of an agreement in circumstances of extreme emotional stress, such as just before a wedding, following a hospitalization, or during an emotional breakdown.

Agreements that are hugely unfair can also be found to be unconscionable, as can agreements formed under a fundamental misunderstanding about the nature of the family finances or one party's assets.

====Lack of Independent Legal Advice====

A spouse may be able to challenge the validity of an agreement where he or she did not receive independent legal advice before executing the agreement. Independent legal advice helps to ensure that both parties are on a more or less equal footing going into the agreement, and to ensure that one party doesn't unintentionally enter into an unfair agreement.

There is, however, no requirement that independent legal advice be sought before an agreement is executed. In most situations, the absence of independent legal advice will not be enough to overturn an agreement by itself.

====Fraud and the Failure to Make Full Disclosure====

When people enter into an agreement, they do so on the assumption that certain material facts are true, that each is earning as much money as they say thay are, that each has no more assets than they say they have, and so forth. These assumptions are the foundation on which the agreement is built. If one of the parties has failed to make full disclosure of these sorts of material facts, or if one party has lied about or misrepresented these facts, the courts may be willing to overturn an agreement.

===Change of Circumstances: Reassessing Support===

The court can make an order for spousal or child support, despite the existence of a valid separation agreement which might already deal with these issues. The court will, however, be strongly influenced by what an agreement has to say about support and will give the agreement a great deal of weight in deciding whether to make an order any different than what the agreement sets out.

====Child Support====

As in all matters concerning children, the courts' primary concern is with the best interests of the child. The courts will rarely vary an agreement that provides that child support will be paid in accordance with the federal Child Support Guidelines to some other amount of support. By the same token, the courts may be reluctant to reduce a child support provision which is higher than what the Guidelines provide where the higher level is reasonable, because it is logically in the best interests of the child to have the benefit of as much support as possible. The courts will almost always increase a provision which is less than what the Guidelines would mandate.

The court will generally make an order for child support, including an order which is different than what an agreement requires, if:

the payor's income has increased;
the payor's income has decreased;
one or more children is no longer living mostly with the parent receiving support;
one or more children is now spending 40% or more of their time with the payor; or,
one or more children is no longer entitled to receive support.
See the chapter Child Support > Making Changes for more information.

====Spousal Support: Agreements for the Payment of Support====

Both the Divorce Act and the Family Relations Act allow the court to make an order for spousal support contrary to the terms of an existing separation agreement. In making such an order, however, the court is required to bear the terms of the agreement in mind. This will affect the court's decision, as there may be a presumption that the amount agreed to is fair and reasonable.

In Pelech v. Pelech, a 1987 case of the Supreme Court of Canada, the court had this to say about the matter:

"Where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions."
As a result, to vary an agreement for spousal support, the person seeking the change must show that there has been a change in circumstances that is "substantial, unforeseen and of a continuing nature" related to the marriage. While some courts have held that a failure to become self-sufficient and find gainful employment is enough of a change in circumstances to warrant changing an agreement, in general the applicant must demonstrate that there has been a serious and unexpected change in his or her circumstances.

The "change of circumstances" which might justify the court making an order for spousal support different than what an agreement provides for include circumstances in which:

the recipient's income has increased such that he or she requires less support;
the recipient has remarried or entered into a new relationship such that he or she is being supported by someone else;
the payor has retired; or,
the payor's income has decreased and is expected to continue to remain at the lower level.
Note that the publication of the Spousal Support Advisory Guidelines is not a change in circumstances that will result in the court making an order for spousal support.

See the chapter Spousal Support > Making Changes for more information.

====Spousal Support: Agreements Not Requiring Support====

It is a bit harder to challenge an agreement which says support won't be paid. In cases like this, the person claiming spousal support has to show why he or she shouldn't be held to the bargain that was struck.

In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court described a test that should be used when someone wants to get spousal support after signing a separation agreement which says it shouldn't be paid:

First, the court must decide whether the agreement was negotiated fairly. Was there an equality of bargaining power? Was someone pushed into the deal?
Next, if the circumstances surrounding the agreement were reasonable, the the court consider whether the agreement as a whole met the objectives for spousal support set out in s. 15.2 of the Divorce Act at the time it was made.
Finally, even if the agreement met the Divorce Act objectives then, the court must decide if it continues to meet them now, when the agreement is being challenged. Does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the Divorce Act?
If the person seeking spousal support is shown to be entitled to receive support and one or more parts of this test are met, then the court may decide that support should be paid regardless of what the parties agreed to in their separation agreement.

===Unfairness: The Division of Property===

The provincial Family Relations Act deals with the division of family assets between spouses. The assets of unmarried couples are usually divided under the law of trusts or the Partition of Property Act, however the Family Relations Act will apply where a unmarried couple has made an agreement which deals with assets, under s. 120.1 of the act.

There are three critical sections of this act which bear on the division of property under separation agreements:

61 (1) This section defines marriage agreement for the purposes of this Part and this definition applies to marriages entered into, marriage agreements made and to property of a spouse acquired before or after March 31, 1979.
(2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
(a) management of family assets or other property during marriage, or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement, or an amendment or rescission of a marriage agreement, must be in writing, signed by both spouses, and witnessed by one or more other persons.
65 (1) If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to
(a) the duration of the marriage,
(b) the duration of the period during which the spouses have lived separate and apart,
(c) the date when property was acquired or disposed of,
(d) the extent to which property was acquired by one spouse through inheritance or gift,
(e) the needs of each spouse to become or remain economically independent and self sufficient, or
(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,
the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.
(2) Additionally or alternatively, the court may order that other property not covered by section 56, Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse.
68 (1) This section applies to an ante nuptial or post nuptial settlement that is not a marriage agreement under this Part.
(2) The Supreme Court may, on application, not more than 2 years after an order for dissolution of marriage, for judicial separation or declaring a marriage null and void, inquire into an ante nuptial or post nuptial settlement affecting either spouse and, whether or not there are children, make any order that, in its opinion, should be made to provide for the application of all or part of the settled property for the benefit of either or both spouses or a child of a spouse or of the marriage.
(3) The Supreme Court may, on application, if circumstances warrant, extend the period during which an application may be made or power exercised under this section.
To simplify things a bit, s. 61 defines "marriage agreement" for the purposes of the parts of the act which deals with the division of assets, Parts 5 and 6. Section 65 allows the court to vary the division of property set out by an agreement where the division prescribed by the agreement is unfair. Section 68 applies to agreements that aren't "marriage agreements" as defined by s. 61, and allows the court to review such agreements.

The effect of these sections is to allow the court to vary the parts of a separation agreement dealing with property where the agreement is unfair, so long as the agreement qualifies as a "marriage agreement" under s. 61. For the purposes of s. 61, a "marriage agreement" must:

be between married spouses;
concern family property, at least in part;
be in writing; and,
be signed by both spouses whose signatures are witnessed.
In the case of Gold v. Gold, a 1993 case of the Court of Appeal for British Columbia, the court had this to say about fairness:

"If the agreement is unfair within one or more of the [criteria listed in s. 65], then the Court has a wide discretion to reapportion the family property to achieve fairness. However, I find nothing in the Family Relations Act, nor in the authorities, which suggests that only equality or near-equality can be fair. ... Many divisions of family property must be unequal in order to be fair."
See the sections Unmarried Couples and Family Assets for more information about the division of assets.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Agreements after Separation

2013-03-04T03:02:39Z

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A separation agreement is contract which records a settlement of the issues which arose when a relationship ended. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over. Separation agreements can be an effective and inexpensive way of concluding a settlement, however the terms of the agreement must be fair and the parties must be able to get along well enough to negotiate the deal and then implement it when it's done.

This page will provide a brief introduction to separation agreements, discuss how separation agreements are formed and the legal requirements of separation agreements, and look at the typical subjects of separation agreements in some detail. It will also discuss the effect of reconciliation on separation agreements.

==Introduction==

Every separating couple has three options to resolve the legal issues between them:

settle the matters between them out of court through negotiation or mediation, or through some other alternative process like arbitration or collaborative law;
have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process; or,
give up and just walk away from the mess.
It almost always better to negotiate and settle a dispute than to litigate and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a law suit has started. Typically a settlement reached before litigation has begun is put into the form of a separation agreement. Settlements reached after the start of litigation can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a consent order, an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple faces, from who will keep the cats, to how the mortgage is paid out, to how the children's post-secondary education will be handled. They can also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

Of course, separation agreements aren't for everyone. There must be a certain basic amount of mutual trust and good faith, and each party must have a certain flexibility and a willingness to accommodate the other side. A separation agreement will not be appropriate where a couple are so filled with anger, jealousy or stubbornness that even a basic level of mutual respect is absent and dialogue is not possible.

===Alternatives to Separation Agreements===

Settlement can be reached in a number of different ways before litigation has started: through negotiation, mediation, the collaborative law process or arbitration. Settlements reached this way are almost always recorded in the form of a separation agreement.

Settlements reached after litigation has started are generally only recorded as separation agreements if they are unusually complicated or if there are concerns about whether a term of the settlement can be put into a court order. Otherwise, a settlement of litigation will be recorded as minutes of settlement or a consent order.

====Minutes of Settlement====

Minutes of settlement are a written record of the settlement of a law suit. They are reached after a law suit has begun and are usually used to describe the terms of a future consent order, an order that both parties agreee the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record a rather hasty settlement of the issues, a settlement which is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less all-inclusive than separation agreements. Even though they lack the same fine-tuning and comprehensive detail, minutes of settlement are just as binding upon the parties as a separation agreement would be: both are contracts and can be enforced as such.

Minutes of settlement should:

be signed by both lawyers and by both parties, although the signatures of the parties isn't strictly necessary;
deal with each significant issue in a final manner; and,
be attached to the draft consent order submitted to the court for its approval.

====Consent Orders====

A consent order is an order that both parties agree a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

When a judge pronounces an order by consent, the order has just the same effect as a final order reached after a trial and is binding upon the parties as a final order.

====Minutes of Settlement and Consent Orders====

The advantage of minutes of settlement is that the minutes can stand alone as evidence of the written agreement of the parties, while the form of a draft consent order, which may reflect the parties' agreement, still requires the court's approval. Moreover, if the terms of a draft consent order are contested, there may not be any evidence of the agreement — as would be provided by minutes of settlement — on which a court can decide the matter.

Consent orders have a unique advantage of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and such orders are almost impossible to appeal.

===Other Final Agreements===

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married couples or common-law couples and deal with a large range of issues, from the care and control of children to the division of assets. Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required.

People who are just parents and never married or cohabited may want a parenting agreement that talks about custody, guardianship and a parenting schedule. Couples who only need to deal with child support or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Agreements like these can involve more people than a couple. Separated parents might sign a contact agreement with grandparents who want access to the their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Forming a Separation Agreement==

One party can suggest to the other that a separation agreement should be negotiated and drawn up at any time after a married or unmarried relationship has broken down. A separation agreement can be drawn up after a court action has been started or before one has even been considered. Such agreements are usually drafted before a court action has started, but there is nothing which prevents a couple from entering into such an agreement afterwards.

===The Basic Process===

Regardless of whether an action has been started, the process is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship amongst themselves (and, hopefully, in consultation with their lawyers as well), and attempt to arrive at a resolution of each issue which is as satisfactory to both of them as possible. It is a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for the text of any agreement which might be reached.

The settlement process is a process of negotiation: each party has a pretty good idea of how they would like to see things settled, and then, following the exchange of these ideas, a compromise is reached which represents a blending of the two goals.

Once an agreement is reached, one of the parties will draw up a formal agreement and present it to the other party. This draft is carefully reviewed to ensure that it reflects the agreement that was reached, check whether anything was left out, and make sure that there are no other issues which need to be discussed and included.

(Drafting a separation agreement is something which requires a great deal of skill and an intimate knowledge of family law and contract law. While kits are available that can guide you in drafting an agreement, where the content of the agreement is anything less than completely straightforward, I highly recommend that you hire a lawyer to deal with the matter. Drafting issues are briefly dealt with in the first chapter of this section, Family Agreements.)

Once both parties are content with the text of the agreement, they must each separately take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice as to how the agreement affects their legal rights and the options they may have open to them if they do not execute the agreement. This is called getting "independent legal advice." This stage is critical for three reasons:

if you are entering into an agreement which will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a law suit;
you must understand the obligations and rights you have under the agreement; and,
it stops either party from claiming, later on, that the party didn't know what the agreement meant or that the party was at a disadvantage because the other party's lawyer drafted the agreement.
After each party has had independent legal advice about the agreement they will then execute the agreement in the presence of a witness, as long as they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a Certificate of Independent Legal Advice.

Normally, four separate original copies of a separation agreement are executed. This is so the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

===If you are Negotiating an Agreement and have a Lawyer===

Even if you have a lawyer it can be extremely tempting to work something out with your ex on the side. If you feel even remotely tempted to do so, call your lawyer! Make sure your lawyer knows that you're trying to explore settlement, and make sure you understand what to say and what not to say.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you will and can arrive at any agreement you wish, be warned that you may find yourself settling for extremely poor terms, compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you will be held to any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

Call your lawyer before you sign or initial anything. This is what you're paying for.

==Formal Requirements of Separation Agreements==

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it is a special kind of agreement, different from commercial contracts, because it concerns family law issues which are also discussed in the Family Relations Act and the Divorce Act. As a result, the law dealing with separation agreements is a blend of statute law, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is that the agreement, just like a commercial contract, is expected to bind the parties and govern how they will relate to each from the moment the agreement is executed. As such, the agreement must be enforceable and it must withstand the scrutiny of the court, that is, it must be drafted in such a way and contain reasonably fair terms such that a court will uphold it if it is challenged. A separation agreement must therefore conform to certain basic rules, including the following:

A separation agreement must be set out in writing.
The agreement must be signed by each party and should be signed in the presence of a witness.
The parties cannot be under the age of majority or suffer from any other legal disability.
The agreement must clearly identify the parties and the nature of their rights and obligations to one another.
Certain principles of contract law will also apply to separation agreements, including the following:

The parties must each enter into the agreement of their own free will, without coercion or duress by the other party, or by anyone else.
The parties cannot make an illegal bargain, that is, they can't form an agreement which obliges them to do something illegal or otherwise against the law.
Where an agreement is prepared by a spouse's lawyer and the other party doesn't have a lawyer, any parts that are vague may be interpreted in favour of the party who didn't hire the lawyer.
The court will attempt to give effect to a contract wherever possible, that is, it will attempt to give meaning to the terms of a contract rather than declare it void.
Family law agreements are also subject to other principles, princples that don't necessarily apply to commercial contracts:

The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
If one term of a separation agreement is void, only that term will fail and the rest of the agreement will stand as a valid agreement.
A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.
While the parties can agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.
Note that the courts will rarely — if ever — uphold an agreement which attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not be bound by an agreement which provides that a party will never have to pay child support.

==The Possible Subjects of a Separation Agreement==

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That being said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.

===Children===

Issues about parenting after separation boil down to three legal concepts: custody, guardianship and access.

====Custody====

There are two basic types of custody available, sole custody and joint custody. Sole custody is fairly rare, and is usually only appropriate where the parties are constantly at each other's throats or where one party expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children.

Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.

See the chapter Children > Custody for more information.

====Guardianship====

Like custody, guardianship can be held solely by one parent or held jointly by both. A parent who has sole guardianship of a child is entitled to make all sorts of decisions affecting the child's life without the necessity of seeking input from or getting the agreement of the other parent. Where the parties share joint guardianship of the child, they each have responsibility for managing the child's life, from the choice of the child's school, to the manner of the child's religious education, to selecting the child's medical treatment in case of illness.

Joint guardianship is the most common form of guardianship. Sole guardianship is usually only appropriate where:

a parent expects to be absent from a child's life;
a parent has absolutely no interest in raising his or her child or being a part of the child's life; or,
the parents simply can't get along well enough to talk civilly about the child.
When guardianship is shared, it is a good idea to spell out exactly how the parties will share their responsibilities in a little more detail than simply saying "Jane and John will share joint guardianship." The Joyce model and Horn model of joint guardianship, the two most common expanded definitions of joint guardianship, are described and available for download in Word format in the chapter Children > Guardianship.

Note that if nothing is spelled out in the agreement with respect to guardianship, the parent or parents who have custody of the child are assumed to also have guardianship of the child.

====Access====

Access can mean the child's general parenting schedule, although it is usually used to describe the parenting time of the parent with the least amount of time with the child. The terms of a parent's access can be very specific or, where the parties get along exceptionally well with one another, the terms can be as vague as "Jane will have liberal and generous access to the child."

If there has been a history of difficulty exercising access or there is even a smidgen of conflict between the parties, it can be terribly important to spell out access to avoid future arguments. The terms of access usually spell out when the parent will see the child on a week-to-week basis, such as "John will have the child from Friday at the end of school to the following Sunday at 7:00pm, every other week, plus each Wednesday from the end of school until 7:00pm." They can also take into account:

the child's birthday;
Mothers' Day and Fathers' Day;
the parents' birthdays;
school and religious holidays;
extended access when there is a civic holiday or a professional development day at school;
contact by telephone and computer, including email, instant messaging and video conferencing;
responsibility for picking up and dropping off the child;
school events;
the child's extracurricular activities; and,
birthdays of the child's friends.
See the chapter Children > Access for more information.

===Child Support===

Child support is a monthly sum, paid by the parent who has the child for the least amount of time to the parent who has the child for the most amount of time, to defray the day to day living expenses of the child. The amount of child support which is paid is almost always dealt with by referring to the federal Child Support Guidelines, which sets out the amount of a parent's child support obligation in table format according to the number of children support is being paid for and the payor's income.

A good separation agreement will:

state the income of each parent at the time the agreement is made;
state the monthly child support to be paid;
set up a system which requires the parties to exchange copies of their tax returns and Canada Revenue Agency notices of assessment each year or every other year;
provide for a review of child support if the payor's income rises or falls; and,
provide for the recalculation of the parties' shares of the cost of the child's special expenses if either party's income rises or falls.
The Guidelines are an extremely convenient way to calculate a party's child support obligations up to the point where the spouse paying support, the "payor," has access to the child for 39% or less of the time. Once the payor has 40% or more of the child's time, the Guidelines tables become less important, and child support is assessed based on, among other things, each party's income and the amount of expenses related to the child each party is paying. In the context of separation agreements, this allows for a little more flexibility in determining child support, but makes the annual exchange of financial information even more important.

See the section Child Support for more information. Child Support > The Guidelines has calculators for child support and children's special expenses.

===Spousal Support===

Spousal support is paid by one party to the other to help defray the recipient's day to day living expenses. A separation agreement which provides for the payment of spousal support should be negotiated bearing in mind all of the things the court would have considered in making an order for spousal support. Of course, when a separation agreement is being drawn up, the amount of spousal support payable, if any at all, is the product of the parties' negotiations.

Typically, a separation agreement which provides for spousal support will include some means of limiting the length of time for which support will be payable. Such terms might include:

a fixed length of time over which support will be paid, after which the payor has no more responsibility to pay;
an indefinite amount of time that support will be paid, with one or more dates set when the question of spousal support can be reviewed;
a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force;
the termination of support if the recipient remarries or otherwise becomes supported by someone else;
a fixed lump-sum payment of support;
a mutual waiver of any entitlement to receive spousal support; or,
triggers that might result in an early termination of spousal support, such as the recipient's death or remarriage.
In some situations, of course, permanent support may well be required, especially if the relationship was lengthy or if the recipient is unlikely ever to become self-sufficient.

Some agreements also provide that no spousal support will be payable. If you are the spouse who would ordinarily be entitled to receive support, you must be confident that the agreement fair as it may prove very difficult to obtain support later on if your personal circumstances change.

Calculating the amount of support to be paid used to depend almost wholly on the recipient's reasonable monthly needs and the payor's monthly disposable income. In January 2005, the federal Department of Justice issued the first draft of an academic paper that describes mathematical formulas to calculate how much support should be paid and for how long. This paper, the Spousal Support Advisory Guidelines, has been warmly received in British Columbia and is commonly used by lawyers and judges to calculate spousal support, whether the issue is being litigated, mediated or negotiated.

The major problem with the Advisory Guidelines is that the Department of Justice has thus far failed to make spousal support calculators available to the public, and you may want to consult a lawyer who has access to spousal support software to see what the formulas say in your case.

See the section Spousal Support for more information about spousal support in general. The chapter Spousal Support > The Advisory Guidelines talks about the Advisory Guidelines in more detail and has a link to a website where the paper can be downloaded.

===The Division of Assets===

The ways in which a separation agreement can deal with the division of family assets are virtually unlimited. Some spouses are willing to walk away from a relationship with only those assets held in their own names; in some circumstances, however, this would be grossly unfair and a division of some or all of the assets is required.

Where assets are an issue, it's often helpful to exchange Financial Statements. A Financial Statement is a form set out in the Supreme Court Family Rules in which each party itemizes their income, assets, expenses and debts. This form can be extremely useful for each spouse to get a clear idea of the exact financial situation of the other before any property-related negotiations start. You can download a blank Financial Statement in Word format and an example of what the form looks like when it's filled out in the downloads segment of The Legal System > Starting an Action.

The ways that assets can be divided in separation agreements are almost limitless, and depend entirely on the circumstances of each party, the length of the relationship and whether the parties are married or unmarried. Some people take what they brought into the relationship and divide the things bought afterwards; some people sell everything and divide the proceeds; others allot certain assets to each spouse and equalize the value of what each is taking; some people divide their assets equally and others do not. Regardless of how the assets are divided, however, don't forget to account for shared debts and remember that pension plans and RRSPs are family assets that married spouses have an entitlement to!

Remember that the rules that apply to dividing assets between married couples do not apply to unmarried couples, who only have a presumptive interest in assets that they both own. What is fair for a married couple is unlikely to be fair for most unmarried couples, except perhaps for couples involved in very, very long relationships.

See the section Family Assets for more information.

===Other Issues===

Arrangements for the care and control of children, the payment of support and the division of family assets are the most common issues that come up in family law. There are a whole host of other issues which couples may have to deal with, including some that can only be dealt with in separation agreements.

====The Parties' Future Relationship====

Most separation agreements include a whole section devoted to describing how the parties will deal with each other once the agreement is executed. Typically, this portion of an agreement requires the parties, among other things, to:

not incur debts in the name of the other party;
not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends and future partners; and,
not molest, harass or annoy the other party.
Some separation agreements will also describe what will happen if the parties reconcile with each other. Most often an agreement will simply say that it becomes a marriage agreement or a cohabitation agreement if the parties reconcile and that it will not cease to be in effect simply because of the reconciliation.

====Life Insurance====

Where children are involved, it can be a good idea to provide that each party will maintain a life insurance policy until the children have all reached the age of majority. Each policy will name the other parent as the sole beneficiary of the policy in trust for the benefit of the children, in order to ensure that the kids will be looked after in the event that either party dies. Most agreements that deal with insurance allow the parties to change the beneficiaries of their policies once the youngest child turns 19.

In general, it's only appropriate to include a term about insurance policies if the parents can afford to pay for those policies.

====Undisclosed Assets====

If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:

any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties;
the party that didn't disclose the asset will have to give the other party one-half of the asset's value; and,
the party that didn't disclose the asset will have to pay the costs the other party incurred in finding the asset, plus a financial penalty.
4. Family Debts
A separation agreement should deal with how the parties' debts will be dealt with, including debts that are owed only by one party. Separating couples typically pay out shared debts by the sale of a shared asset, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family assets to compensate for a debt.

When a debt won't be paid out, it is essential to do two things: allocate responsibility for the debt; and, provide that the party keeping the debt will preserve the other party from any financial consequences of that debt.

==The Effect of Reconciliation==

Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?

The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resumed married life. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, in Sydor v. Sydor. In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from the marriage.

The upshot of all this is that if you believe you and your partner might get back together at some point in the future and want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement will be worthless if the relationship breaks down again at some point afterwards.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Marriage Agreements

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A marriage agreement is a contact entered into either before marriage or shortly afterwards. Most marriage agreements are drafted and signed well ahead of the date of marriage. Marriage agreements are usually intended to deal with the legal issues that will arise if the marriage breaks down but they can also deal with how day-to-day issues will be handled during the marriage.

This page will discuss when and why marriage agreements are usually entered into, the legal requirements of a valid marriage agreement, and the possible subjects of a marriage agreement.

==Entering into a Marriage Agreement==

A couple may enter into a marriage agreement with the intention of addressing things that might happen during the course of their marriage, but, more typically, they are intended to address the issues that will arise when the marriage breaks down. Marriage agreements are binding on the parties as a legal contract and will usually be enforced by the courts.

Most couples who marry do not have a marriage agreement. There is no legal requirement that you must enter into such an agreement if you're getting married and you cannot be forced into a marriage agreement.

===When a Marriage Agreement is a Good Idea===

Marriage agreements are usually appropriate when:

one or both of the parties have a substantial amount of property or assets going into the marriage;
one of the parties expects to acquire substantial assets during the marriage through, for example, a business, an inheritance, a settlement or court award, or a gift;
the parties want to avoid some of the stress and anger that can come after separation by deciding in advance how certain difficult issues, like the division of family assets, will be dealt with;
one or both of the parties has been married before and experienced an ugly court battle;
one or both of the parties will be bringing children from a previous relationship into the marriage; or,
one of the parties is entering the marriage with substantial debt.
In most cases, people generally want to protect the property that they're bringing into the marriage and avoid the Family Relations Act's presumption that all assets ought to be split equally between spouses when their marriage comes to an end; many people are looking for an "I'll keep what's mine, you'll keep what's yours" sort of deal.

The odd thing about this is that the court may make an order dividing assets that's different than what a marriage agreement calls for if the agreement is found to be unfair under s. 65 of the Family Relations Act. As a result, a good marriage agreement will allow a spouse to "earn" an increasing share of the other spouse's property as time goes by to give the contract the best chance of remaining fair from the point of view of the act. In many marriage agreements, a spouse will earn an equal or near-equal share of the assets by the fifteenth, twentieth or twenty-fifth year of marriage. In fact, most people don't wind up with an "I'll keep what's mine, you'll keep what's yours" deal after all.

===When a Marriage Agreement is a Bad Idea===

A marriage agreement may not be appropriate when:

neither party has any significant assets;
neither party has any significant debts;
both parties are relatively young and intend the marriage to be permanent; and,
neither party is bringing any children into the marriage from another relationship.
In circumstances like that, there really isn't much of a point to executing a marriage agreement. There aren't any kids to worry about and neither party has any assets to protect going into the marriage. What purpose would a marriage agreement serve?

Marriage agreements are odd things anyway as they tend to lend a unpleasant and sometimes petty financial dimension to what ought to be a joyous circumstance. If there's no good reason to have a marriage agreement, don't have a marriage agreement.

===Negotiating a Marriage Agreement===

If a marriage agreement is appropriate and desirable, the parties will negotiate the terms of the agreement, and one or both of the parties will draft a written agreement for review and maybe execution. As with all family law agreements, it is important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will affect those rights and responsibilities if the marriage comes to an end. Getting independent legal advice makes the agreement harder to change later on by preventing one spouse from saying "I didn't know what it meant" or "she had the lawyer, not me" and challenging the agreement later on.

Marriage agreements should be entered into well in advance of the marriage ceremony. If an agreement is being negotiated on the brink of the wedding, the court may be concerned about the fairness of the circumstances in which the agreement was negotiated and executed. The emotional stress involved in arranging the wedding may be found to mean, for example, that a party was effectively coerced into signing the agreement. Are you going to tell everyone to go home because your spouse is insisting that you sign a contract you disagree with?

On the other hand, there's nothing wrong with executing a marriage agreement after the ceremony, except that the spouse who wants the agreement loses a fair bit of bargaining power.

===Avoid Do-It-Yourself Marriage Agreement Kits===

Staples, Chapters, London Drugs and other stores generally carry a wide range of DIY legal products, from doing your own will to getting your own divorce.

In my view most of these do-it-yourself kits are fine for most people most of the time. They are not fine for marriage agreements. Marriage agreements can be terribly complicated, more so than separation agreements, and must be drafted with a good knowledge of family law in general and marriage agreements in particular. I really encourage you to avoid do-it-yourself marriage agreement kits.

If you figure that you absolutely must have a marriage agreement, it's well worth $1,500 to $4,000 to pay a lawyer to draw it up correctly for you now, rather than spending $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.

==Legal and Formal Requirements of a Marriage Agreement==

The point of entering into a marriage agreement is so that, at some later time, the spouses will be required to abide by its terms and, if they don't, then the contract will be enforceable in court. As such, a marriage agreement, just like any other family law agreement, must conform to certain basic rules, including the following:

A marriage agreement must be set out in writing.
The agreement must be signed by each party, preferably in the presence of a witness.
Neither party can be under the age of majority (unless the minor has the capacity to marry and the permission of the court to enter into the marriage agreement), or suffer from any other legal disability.
The agreement must clearly identify the parties and the nature of their rights and obligations to one another.
Section 61 of the Family Relations Act defines "marriage agreement" for the purposes of Parts 5 and 6 of the act which deal with the division of property:

(2) A marriage agreement is an agreement entered into by a man and a woman before or during their marriage to each other to take effect on the date of their marriage or on the execution of the agreement, whichever is later, for
(a) management of family assets or other property during marriage, or
(b) ownership in, or division of, family assets or other property during marriage, or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage.
(3) A marriage agreement ... must be in writing, signed by bouth spouses, and witnessed by one or more other persons.
This definition is only relevant if one of the spouses later makes a claim for a division of assets under the Family Relations Act and challenges the status of the marriage agreement. A proper marriage agreement doesn't have to deal with assets at all of course, but can instead just talk about issues like the care and control of children, spousal support, the division of labour during the marriage and so forth.

Don't worry about the gender requirement of s. 61(2); it is plainly unconstitutional and will be set aside if challenged.

In addition to complying with the basic formalities of a proper family law agreement (that the agreement be signed, that it be in writing and so on), certain principles of contract law should also be considered, including the following:

The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else... like a prospective in-law.
The parties cannot make an illegal bargain, that is, they can't form an agreement which obliges them to do something illegal or is otherwise against the law.
Where an agreement is prepared by one spouse's lawyer and the other spouse doesn't have a lawyer, any parts that are vague may be interpreted in favour of the spouse who didn't have the lawyer.
The court will attempt to give effect to a contract wherever possible, that is, it will attempt to give meaning to the terms of a contract rather than declare it to be void.
If a term of a marriage agreement is found to be invalid, only the invalid part of the agreement will fail. The remainder of the agreement will continue to be valid and binding on the parties.
Aside from these considerations, it is also important to remember that marriage agreements are usually only meant to be used at some unknown time in the future. While separation agreements are intended to work immediately from the moment they are signed, marriage agreements usually aren't intended to work until some later time, usually upon the spouses' separation. As a result, it can be extremely difficult to guess what each party's situation will be like at that future date and decide whether the agreement will still be appropriate, fair and relevant. Because of these problems, hiring the services of a lawyer to prepare the agreement is highly recommended. Crafting a solid marriage agreement can be a tricky business.

Finally, you should also know that the courts will rarely — if ever — uphold an agreement which attempts to avoid and "contract out" of a statutory obligation. Child support, for example, is a positive, almost absolute obligation a parent has towards his or her children. A court is not likely to allow an agreement to stand which provides that a parent will never have to pay child support.

==Possible Subjects of a Marriage Agreement==

A marriage agreement can address any number of subjects, and deal with anything that's a concern to one or both spouses. Typical subjects include the following.

How will the spouses own assets during the marriage?
How will the spouses divide their property after the marriage? Will there be any division of property at all? Will the spouse without the assets receive a fixed share, or a share that increases as time goes on?
Will the spouses share in the value or cost of assets bought during the marriage, like a car or a house?
Will the parties have a share in assets brought into the marriage by one of the spouses?
How will unexpected windfalls like inheritances and lottery wins be dealt with? Will they be shared or kept separate?
How will household chores be shared during the marriage?
How will household expenses be paid for during the marriage? Will both spouses contribute to the bills? Will the bills be divided between them?
How will the spouses manage retirement savings during the marriage?
How will the children brought into the marriage from another relationship be dealt with during the marriage? Will any responsibilities survive separation?
How will children born during the marriage be cared for after separation?
Despite the provisions of s. 61(2) of the Family Relations Act, referred to above, the possible subjects of a marriage agreement are limited only by imagination, common sense and the law of contracts, and I've seen some fairly unique marriage agreements from time to time, including agreements, likely unenforceable, which talk about the frequency of sex and who will take out the garbage.

As a general rule of thumb, however, it's best to deal with the concrete things that exist at the time of the marriage (such as children from a previous relationship, existing debts, and existing assets) and things that the couple reasonably expect to happen during the marriage in the short term (such as receiving an inheritance or a court award). Dealing with things that might happen (like new children, a move to a new town or lottery winnings) is really speculative, and it's almost impossible to know how they should be dealt with if, at some unknown point in the future, the marriage comes to an end

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Cohabitation and Living Together Agreements

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Cohabitation agreements are contracts signed by couples who plan to live together or who are already living together. Cohabitation agreements typically deal with issues like the division of property and debt or the payment of spousal support if the relationship ends. Cohabitation agreements can also deal with issues during the relationship, like how the housework is distributed and how the household expenses are paid. There is no legal requirement for people to sign a cohabitation agreement when they decide to live together.

This page will discuss when and why cohabitation agreements are usually signed and the legal requirements of valid cohabitation agreements.

==Entering into a Cohabitation Agreement==

Cohabitation agreements, also known as "living together agreements," are usually signed before or shortly after a couple starts living together. A couple may enter into a cohabitation agreement with the intention of addressing things that might happen during the time they live together, while they ''cohabit'', but cohabitation agreements are most often intended to address the issues that might arise if their relationship breaks down.

There is no legal requirement that you must enter into such an agreement if you're living with someone or plan on living with someone, and you can't be forced to into a cohabitation agreement.

===Unmarried Couples and Cohabitation Agreements===

The big difference between marriage agreements and cohabitation agreements is that couples who sign a cohabitation agreement aren't married and don't intend to get married, at least not just yet. As a result, it's important to understand exactly how the legal status of unmarried couples differs from that of married couples before even thinking about the idea of a cohabitation agreement. This segment will provide a brief discussion of this topic; you should read through the Unmarried Couples section for a better understanding of these issues.

Married couples have been legally married, either by a civil ceremony performed by a marriage commissioner or in a religious ceremony performed by a religious official. An unmarried couple will become "common-law," for the purposes of the Family Relations Act, after they've lived together in a "marriage-like relationship" for two years. Unmarried couples, including common-law couples, are not legally married to one another, and they'll stay that way until they are formally married.

For the purposes of this chapter, the criticial distinction between married spouses, common-law partners and couples who have lived together for less than two years lies in the different legal issues that arise when these different sorts of relationship come to an end. Here's a summary:

Issues relating to the care and control and financial support of children born in the relationship are fairly straightforward, since the claim mostly depends on whether someone is a parent, not on the nature of the relationship between the parties. With respect to spousal support, only married and common-law couples may make a claim. Issues relating to property are a bit more complex.

Only married couples can make a claim for the division of assets under the Family Relations Act. Since unmarried couples can't apply for the division of assets under the Family Relations Act, they can only make a claim against assets owned by the other under the law of trusts, usually the law relating to constructive trusts, express trusts or resulting trusts. (If the couple jointly owns real property together they can also make a claim under the Partition of Property Act.) Trust claims are a lot more complex than making a claim under legislation, and, even if the trust claim is successful, the amount awarded is generally a lot less than what the result would have been had the couple been married.

Trust claims to assets are discussed in the chapter Family Assets > Dividing Assets.

===Deciding Whether a Cohabitation Agreement is Appropriate===

The usual reason why a couples enter into cohabitation agreements is to protect their respective property and finances, so that each party's assets going into a relationship are preserved as much as possible if the relationship comes to an end. Sometimes one party wants to preserve property from claims by the other party; sometimes a party wants to protect property from the other party's debts. Generally speaking, most couples who are thinking about executing a cohabitation agreement want a "I'll keep what's mine, you'll keep what's yours" sort of deal. Curiously, as was just mentioned and as will be explained later in more detail, this is precisely the wrong reason to have a cohabitation agreement.

Cohabitation agreements are usually entered into when:

the relationship is expected to be a long one;
one or both parties have a substantial amount of assets going into the relationship;
one of the parties has significantly more income than the other;
the couple anticipate living in a home owned by one of the parties;
one or both parties expect to acquire substantial assets during the relationship from, for example, a business, an inheritance, a court award, a gift or employment income;
one or both parties has significant debts going into the relationship;
one or both parties is bringing a child into the relationship; or,
the parties expect that spousal support may be an issue if the relationship ends.

Cohabitation agreements are generally not appropriate when:

the couple are young;
the point of the agreement is to avoid sharing assets that are brought into or acquired during the relationship;
neither party has significant assets or income going into the relationship;
neither party is bringing any children into the relationship; or,
both parties are working out of the home and expect to continue working out of the home.
Cohabitation agreements can also be useful to set rules for how the parties will manage things during the relationship, although this type of cohabitation agreement is fairly rare. When a cohabitation agreement is needed to deal with those issues, the parties' financial positions may not be relevant.

The usual sort of issues a household management type of cohabitation agreement might be intended to address include:

Who will pay for the household expenses? Will each party pay for a specific set of bills, or will the parties share in all the bills in a fixed amount?
Will the parties keep separate bank accounts, or will they have a joint account for household costs? If there is a joint account, how will each party contribute to the account?
Who will do the household chores? Will each party be responsible for a list of particular tasks?
How will children brought into the relationship be cared for? Will the other party assume any parenting responsibilities?
If, at the end of the day, a cohabitation agreement is appropriate and desireable, the parties will negotiate the terms of the agreement, and someone, whether a lawyer or one of the parties, will draft the written agreement. As with all family law agreements, it is important that both parties get independent legal advice about what exactly the agreement means, how it affects their present rights and responsibilities towards one another, and how it will affect those rights and responsibilities if their relationship comes to an end. Getting independent legal advice strengthens the agreement by preventing one spouse from saying "I didn't know what it meant!" if the agreement is challenged later on.

Finally, a good cohabitation agreement should specify that the agreement will terminate if the parties marry, or that the agreement will become a marriage agreement if the parties marry. Either way, the prospect of marriage and its impact on the cohabitation agreement should be dealt with in some manner.

===Avoid Do-It-Yourself Cohabitation Agreement Kits===

Staples, Chapters, London Drugs and other stores generally carry a wide range of DIY legal products, from doing your own will to getting your own divorce.

In my view most of these do-it-yourself kits are fine for most people most of the time. They are not fine for cohabitation agreements. Cohabitation agreements can be terribly complicated, more so than marriage agreements or separation agreements, and must be drafted with a good knowledge of family law in general and cohabitation agreements in particular. I really encourage you against do-it-yourself cohabitation agreement kits.

If you figure that you absolutely must have a cohabitation agreement, it's well worth $1,500 to $4,000 to pay a lawyer to draw it up correctly for you, rather than spend $15,000 to $40,000 on lawyer's fees down the road if the agreement is flawed.

==Legal and Formal Requirements of a Cohabitation Agreement==

The point of entering into a cohabitation agreement is so that, at some later time, the contract will be enforceable in court if the parties fail to live up to it. As such, a cohabitation agreement, just like any other family law agreement, must conform to certain basic rules, including the following:

A cohabitation agreement must be set out in writing.
The agreement should be signed by each party in the presence of a witness.
The parties shouldn't be under the age of majority or suffer from any other legal disability.
The agreement must clearly identify the parties and the nature of their rights and obligations to one another.
In addition to these simple formalities of a proper family law agreement, certain principles of contract law should also be considered, including the following:

The parties must each enter into the agreement of their own free will, without any coercion or duress by the other party, or by anyone else.
Both parties must make full and complete disclosure of their circumstances going into the agreement.
The parties cannot make an illegal bargain, that is, they can't form an agreement which obliges them to do something illegal or otherwise against the law.
Where an agreement is prepared by one party's lawyer and the other party doesn't have a lawyer, any portions of the agreeement that are vague may be interpreted in favour of the party who didn't have the lawyer.
The court will attempt to give effect to a contract wherever possible, that is, they will attempt to give meaning to the terms of a contract rather than declare it void.
If a term of a cohabitation agreement is found to be invalid, only the invalid part of the agreement fails. The remainder of the agreement will continue to be valid and binding on the parties.
Aside from these considerations, it is also important to remember that cohabitation agreements dealing with assets or issues like spousal support are usually only meant to be used when the relationship comes to an end, at some uncertain time in the future. While separation agreements are intended to work immediately from the moment they are signed, cohabitation agreements aren't usually intended to work until some unknown future date. As a result, it can be extremely difficult to guess what each party's situation will be like in the future and decide whether the agreement will remain appropriate, fair and relevant to their circumstances. Because of these problems, hiring the services of a lawyer to prepare the agreement is highly recommended. Crafting a solid cohabitation agreement is a tricky business at the best of times.

Finally, you should also know that the courts will rarely — if ever — uphold an agreement which attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute obligation a parent has towards his or her children. A court is not likely to allow an agreement to stand which provides that a parent will never have to pay child support who would otherwise be obliged to provide support.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Changing Family Law Agreements

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==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Enforcing Family Law Agreements

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Agreements after Separation

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Marriage Agreements

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Cohabitation and Living Together Agreements

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Family Law Agreements

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{{JP Boyd on Family Law TOC}}

A family law agreement is a contract, just like the contract someone might have with an employer or a landlord: each party promises to do something in exchange for something the other party promises to do, and both expect parties that they'll be held responsible for fulfilling their promises. In family law, contracts like these are used to settle the issues that arise when a relationship ends, although they can also be used to settle how a relationship will be managed.

This chapter provides a brief introduction to family law agreements, and discusses the role they play during relationships and when relationships end. It will also review the typical elements of a family agreement and discuss some of the things you might wish to keep in mind when negotiating and drafting an agreement yourself.

'''DRAFT UNEDITED'''

==Introduction==

Spouses who enter into a family law agreement when they marry or plan to marry are entering into a marriage agreement, also known as a pre-nuptial agreement. Unmarried couples who enter into an agreement when they start living together or plan on living together are entering into a cohabitation agreement, also called a living-together agreement.

The usual point of agreements like these is to set the rules on what will happen if the relationship breaks down, although they can also talk about how things will be handled during the relationship. The odd thing about marriage agreements and cohabitation agreements that although they mostly talk about what will happen when a relationship ends, that may happen in a year, in five years or in twenty years, or it may never happen, and it can be very difficult if not impossible to figure out what the family's personal and financial circumstances might be like at some unknown point in the future when the relationship ends.

Married and unmarried people who enter into an agreement after their relationship has broken down are entering into a separation agreement. A separation agreement is a settlement of the legal issues that crop up when a relationship has ended.

All of these different kinds of agreement are legal contracts which set out the parties' rights and obligations towards one another. They can deal with everything from who gets to keep the Kenny G boxed CD set, to where the children will live, to how the parties will deal with their mutual friends, to who gets to keep the Ford Pinto. While these agreements are usually all-inclusive, they don't have to be; some issues can be left aside for the courts to deal with.

It is important to know that despite the intentions of the parties when an agreement is signed, the contents of their agreement may still wind up being evaluated by the court, and possibly changed, if one of the parties later has a problem with the agreement. While the court will pay a great deal of respect to any written agreement, if an agreement is unfair or becomes unfair the court will generally be willing to look into things and perhaps make an order that is different than what the parties agreed to in their agreement. (The court's authority to poke into private agreements comes from the fact that the court always has the jurisdiction to make orders under the Family Relations Act or the Divorce Act, no matter what arrangement the parties have made between themselves.)

Marriage agreements and cohabitation agreements can be changed by the court on the breakdown of the relationship, if the court considers the agreement to be unfair in light of such things as:

#the length of the relationship;
#the current economic needs of the parties;
#which party contributed what to the relationship;
#the fundamental fairness or unfairness of the agreement;
#a party failed to make full disclosure of his or her financial circumstances at the time the agreement was being negotiated; or,
#the circumstances in which the parties entered into the agreement were unfair.

Separation agreements can be changed by the court if, for example:

#the circumstances of a party or the children changed significantly since the agreement was executed;
#the agreement is or becomes unfair;
#a party failed to make full disclosure of his or her financial circumstances at the time the agreement was being negotiated; or,
#the circumstances in which the parties entered into the agreement were unfair.

Neither of these lists are exhaustive. There are all sorts of other reasons why a court might meddle with an agreement; whether the court will or won't depends entirely on the particular circumstances of the parties, the nature and terms of their agreement, and the nature of the complaints either party has with the agreement.

==The Role of Family Law Agreements==

The fundamental purpose of all family law agreements is to settle an issue that has come up, or one which could come up, and might be the subject of a legal dispute.

It is almost always preferable to settle a dispute rather than have the courts resolve your problem for you. It is usually cheaper to settle a dispute rather than take it to court, and negotiated settlements usually give the parties the best possible chance of maintaining a halfway decent relationship with each other into the future. Family law agreements also give the parties an incredibly flexible way of resolving their dispute, since they can be tailored to suit the particular circumstances and needs of each party and can make use of creative terms that cannot be had through a court order.

===Marriage and Cohabitation Agreements===

Marriage agreements and cohabitation agreements usually set out what will happen if the parties' relationship breaks down, although they can sometimes specify how certain issues will be dealt with during the relationship. These sorts of agreements are normally executed well before the parties marry or begin to live together.

It is important to know that you do not have to enter into a marriage or cohabitation agreement just because your partner wants you to or just because you're about to marry or start living with someone. While your partner may want you to sign the agreement very much, there is no legal obligation to enter into such an agreement. With or without a family law agreement, remedies are almost always available under the common law, the Divorce Act or the Family Relations Act if problems crop up later on. The rest of this website talks about the legal rights and duties involved when a couple lives together, marries or has a baby, and the entitlements and obligations that arise when a couple separates.

Marriage agreements and cohabitation agreements aren't always appropriate. Most people entering into these agreements have been married before (once bitten, twice shy), are coming into the relationship with children, are coming into the relationship with significant assets or signficant debts, or expect to receive significant assets during the marriage. A young couple who have no assets and no children don't necessarily have any particular need to execute a marriage agreement or a cohabitation agreement.

====During the Relationship====

The sort of terms people want to apply during their relationships are most often financial. That being said, family law agreements are incredibly flexible and can require the parties to do anything imaginable, from caring for the children during the work week, to having a certain number of holidays abroad each year, to always wearing blue shirts on Thursdays, to doing the housework. Typically, however, people want to address issues like these:

*How will a joint bank account be managed? Will the parties contribute a fixed monthly amount to the joint account?
*How will common household expenses be shared? Will specific bills be paid by a specific party or will they be shared proportionate to the parties' incomes?
*How will unexpected expenses be paid for?
*How will savings, RESP and retirement funds be set up? Will each party be required to contribute a fixed monthly amount?
*How will each parties' income during the relationship be handled? What will happen if someone gets an unexpected windfall, like a lottery win or an inheritance?

Some agreements are silent on these issues, and some paint only a vague picture of the parties' respective financial responsibilities. Other agreements are mind-bogglingly detailed and cover even the tiniest details. In my view, unless someone is spectacularly anal retentive, the less said in a marriage agreement or cohabitation agreement the better. You wouldn't want every aspect of your relationship governed by a legal contract — that's exactly the sort of thing that encourages relationship breakdown.

====After the Relationship====

The most common reason why people enter into a marriage agreement or a cohabitation agreement is to specify how property will be dealt with if the relationship comes to an end, although agreements like these can certainly deal with custody of children and access, the payment or non-payment of spousal support, and the payment of child support. Typically, however, these sorts of agreements just try to preserve a party's interest in an asset after the relationship has ended. It can be hard to plan ahead of time what ought to happen if there are kids and whether spousal support will need to be paid. In the time between the execution of an agreement and the time a relationship finally breaks down, the parties' individual circumstances may change in entirely unforeseen ways. It is virtually impossible to predict what a couple's financial, emotional and family situation might be on the date that their relationship breaks down, if that in fact happens at all. Even the Amazing Kreskin would have a tough time with this one.

As a result of this uncertainty, marriage agreements and cohabitation agreements are more likely to be varied by the court than separation agreements, particularly when the couple's circumstances have changed in ways not predicted by their agreement or expected by the parties.

Marriage and cohabitation agreements that deal with property have one hidden problem that sometimes makes them inappropriate:

Under s. 68 of the Family Relations Act, the court is authorized to vary a marriage agreement under s. 65 of the act, if the terms of the agreement about property are unfair.
Under s. 120.1, the court can assess a cohabitation agreement for fairness and vary it under s. 65, using the standard of fairness that applies to married couples. Without a cohabitation agreement, the Family Relations Act wouldn't apply to property disputes between unmarried people.
In other words, sometimes the act of making an agreement dealing with property can invoke the jurisdiction of the court, even though that may be precisely what the parties meant to avoid. More information about the division of property between married and unmarried couples can be found in the Family Assets > Dividing Assets chapter.

===Separation Agreements===

Separation agreements are entered into after a relationship has broken down. There is no need for the parties to have moved out or gotten a divorce when the agreement is executed; in fact, when a couple is married it's usually best to deal with the separation agreement before applying for a divorce just in case an agreement can't be reached.

Separation agreements are always the product of negotiations between the parties and, hopefully, their lawyers. The goal of a separation agreement is to deal with all or some of the issues arising from the breakdown of a relationship in a manner that both parties are as happy with as possible. Separation agreements usually deal with the following issues:

How will the children be cared for?
If the children will be living mostly with one parent, how much time with the children will the other parent have?
How much child support be paid, and which of the children's expenses will be shared between the parents?
Should a party receive spousal support? If so, how much support should be paid and for how long?
How will the parties' assets be divided?
How will the parties' debts be paid? Should they be allocated between the parties?
Separation agreements can cover everything that is an issue for a couple, even things that the court would not ordinarily deal with or be capable of dealing with.

Separation agreements are valid and binding from the moment they are executed by both parties. They operate from the time of execution and, where children, child support or spousal support are issues, they continue to operate indefinitely into the future. Theoretically, a separation agreement will be binding on the parties until they die. In practice, however, most people stop relying on the agreement once the children have grown up, left home and become independent, even though the agreement continues to be legally binding between them.

==The Elements of a Family Law Agreement==

The point of a family law agreement is that it is a legal contract that both parties intend to be bound by. In order to be legally binding and enforceable, agreements must be negotiated, drafted and executed in a specific way and include specific terms.

===Entering into an Agreement===
Properly negotiating and entering into a family law agreement isn't simply a matter of putting the important parts on paper and signing the document. There must be fairness in the way an agreement is negotiated, fairness in the way it is drafted and fairness in the way it is signed. In addition, the people entering into the agreement must be able to understand the agreement, be capable of entering into it and enter into it voluntarily. The legal formalities common to all family agreements are these:

The agreement must be in writing. (While oral agreements have been upheld by the courts, it can be very difficult to establish the terms of the agreement, and oral agreements cannot be enforced until a court has determined what the terms of the agreement are.)
The parties must be over the age of majority, and cannot be under any other form of legal disability such as insanity.
The parties must both enter into the agreement of their own free will, without any duress or coercion by the other party.
The parties to the agreement must provide full financial disclosure to each other and must be completely honest in describing their circumstances.
The agreement must be properly executed, preferably in the presence of witnesses.
As a general rule, each party who enters into a family law agreement should get independent legal advice about:

what the agreement means;
what rights and obligations the agreement gives each party;
how the agreement does or does not limit the other legal remedies each party may have outside the agreement;
how the agreement may affect each party over the short- and long-term; and,
the options and remedies that would have been available had the parties chosen to litigate the issues settled in the agreement.
Each party should find their own separate lawyer and meet with the lawyer to review the draft agreement. This process is important for two reasons: it ensures that the parties to the agreement know exactly what their rights and obligations are; and, it makes the agreement stronger by preventing a party from claiming later on that he or she didn't fully understand what the agreement meant or how it would impact on him or her.

===Drafting an Agreement===

Lawyers often write family law agreements in a standard format using standard terms, tailored, of course, to the specific needs and circumstances of the parties. Just because family law agreements are often written using standard terms and standard language does not mean that an agreement using different wording will not be valid because it expresses things in a different way. As long as it is clear what the intentions of the parties are and as long as the agreement is fair, the courts will usually uphold the agreement.

A British Columbia company called Self-Counsel Press publishes a variety of do-it-yourself agreement kits along with instructions for completing and executing them, or you might try LawDepot.com, an American company which says that it has family law agreement kits suitable for British Columbia.

There are still other resources available for free which might help, and your library may have a copy of the Self-Counsel Press materials available for loan. Guides to drafting family law agreements will also be available at your local courthouse law library; one of the very best is the Family Law Agreements Manual published by the Continuing Legal Education Society.

The following are the typical elements of a family agreement, using the example of John and Jane Doe, a fictitious married couple entering into a separation agreement. Note that the examples given are not complete and are provided only to illustrate a point; they should not be used to draft your own agreement!

====The Introduction====

Also known as the exordium, this portion of an agreement identifies the parties to the agreement, provides a title for the agreement, and sets out the date on which the agreement is made. This section typically looks like this:

THIS SEPARATION AGREEMENT is made on this the 1st day of January, 2011.

BETWEEN:
Jane Doe
of 123 King Street, Anytown, British Columbia
("Jane")

AND
John Doe
of 456 Queen Street, Anytown, British Columbia
("John")

====The Recitals====

These are paragraphs that set out the facts on which the agreement is based, and include the basic facts of the relationship, the names and birth dates of any children, as well as the assets each party owns and their respective incomes, among other things.

The recitals are the foundation on which the agreement is built. They should be sufficient to tell a stranger why the parties entered not just into an agreement but this particular agreement. As a result, the recitals are also promises of a sort, in the sense that the parties promise that the facts are true.

It is important that the recitals be as complete as possible because if anyone tries to challenge the agreement in the future, the recitals will set out the facts that were important to the parties at the time the agreement was made.

In the case of a separation agreement, this section typically looks like this:

WHEREAS:

A. Jane and John were married on August 1st, 1993 at Anytown, British Columbia.

B. There are two children of the marriage, namely

i) Sally Doe, born on March 5th, 1995, and
ii) Randy Doe, born on April 11th, 1997
(together, "the Children").
C. Jane is presently employed part-time as a mason by ABC Construction Ltd. and has an annual income of approximately $34,000.

D. John is presently employed full-time as a chef by DEF Resorts Inc. and has an annual income of approximately $45,000.

E. Jane and John have lived separately and apart since December 25th, 2010 (the "Date of Separation"), when Jane left the family home.

F. Since the Date of Separation, the Children have remained living with John in the family home, and Jane has had access to the Children every other weekend from Friday after school until Sunday at 7:00pm.

...and so forth. Other paragraphs might describe the make, model and value of each party's car, the location and value of the family home, the credits cards owned by the parties and the amounts owing on them.

Essentially, every fact which is relevant to the agreement should be put into the recitals to the agreement.

====The Operative Clauses====

These paragraphs set out the meat of the matter; they form the essential terms of the agreement and set out what each party's rights and obligations are. In the case of a separation agreement, this section might look like this:

IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:

1. Jane and John shall live separate and apart and be free from the control of each other.

2. Neither party shall directly or indirectly molest, annoy or harass the other or his or her friends, relatives and associates.

3. Except as is specifically provided in this Agreement, Jane and John shall each keep all property presently in their possession and control as their own, free and clear of any and all claim by the other.

THE CHILDREN

4. Jane and John shall share the permanent joint custody and joint guardianship of the Children, and John shall have the Children's primary residence.

5. Jane shall have access to the children every Wednesday night, from the end of school until 8:00pm, and on every other weekend from the end of school until the following Sunday at 8:00pm.

6. Jane shall have additional access to the children for one-half of the Children's winter school holiday, the whole of the Children's spring school holiday, and for two two-week periods during the Children's summer school holiday.

CHILD SUPPORT

7. Jane shall pay child support to John in the amount of $492 on the first day of each and every month, continuing for so long as the Children remain "children of the marriage" as defined by the Divorce Act.

...and so forth. Other terms might deal with specific assets, like a car or the family home, the sharing of the children's expenses, who will pay what bills, whether and for how long spousal support will be paid, who will pay for the divorce, which laws will govern the interpretation of the agreement, and so on.

====The Signatures====
This is the final section of a family law agreement where the parties will each sign their names in the presence of a witness. The parties can sign the agreement at the same time or separately, at different times and in different locations; either way, each party's signature must be witnessed, and the witness, after seeing the party sign the agreement, must sign his or her name to the agreement. The witness usually provides some other infomation, typically his or her full name, address and occupation.

IN WITNESS WHEREOF, Jane has hereto set her hand and seal at the City of Anytown in the Province of British Columbia, this the 1st day of January, 2011.

SIGNED, SEALED AND )
DELIVERED by Jane )
in the presence of: )
)
___________________ ) ___________________
Signature ) JANE DOE
___________________ )
Name )
___________________ )
Occupation )
___________________ )
Address )
___________________ )

...which would be repeated for John's signature and that of John's witness.

Note that the witnesses are not parties to the agreement and the agreement cannot be enforced against the witnesses. The signature of the witness simply says that he or she saw the particular party sign the agreement in case a party ever denies signing the agreement.

==Negotiating Considerations==

For many couples, negotiations begin and end over a cup of coffee at the local Tim Horton's. This is fine, providing everyone is relatively friendly and the parties are approaching their negotiations from a level footing. The court will respect the agreements that negotiations like these produce on the basis that people are free to make their own bargains and to contract to whatever they like.

Problems can arise when negotiations aren't completely fair. In a 2003 case from the Supreme Court of Canada, Miglin v. Miglin, the court held that family law agreements should not be considered with exactly the same standards that are applied to ordinariy commercial contracts because family law agreements are usually negotiated at "a time of intense personal and emotional turmoil, in which one of both of the parties may be particularly vulnerable." Some of these vulnerabilities were described in a 2000 case from Ontario, Leopold v. Leopold:

"One party may have power and dominance financially, or may possess power through influence over children ... often both contracting parties are vulnerable emotionally, with their judgment and ability to plan diminished, without the other spouse preying upon or influencing the other. The complex marital relationship is full of potential power imbalance."
In a 2009 case, Rick v. Brandsema, the Supreme Court of Canada added another factor to this list, incomplete or misleading financial disclosure.

Potential unfairness, then, can come from:

exploiting a party's emotional or psychological vulnerability;
influence over a party through dominance and oppression;
control over the family finances;
influence over the children's allegiances; or,
access to or control over the release of financial information;
Where unfairness is found, the court will be more likely to set aside an agreement or to make an order on terms different than those set out in an agreement. As a result, people negotiating family law agreements must take special care to ensure that everyone is on a level playing field and are negotiating from positions of relative equality. Here are some things that can help:

Independent legal advice: Make sure everyone has legal advice about the meaning and consequences of the agreement from their own lawyers. Have the same lawyers witness the parties' signatures on the agreement, and execute certificates of independent legal advice.
Respect vulnerabilities: Stop negotiations when someone is too upset to continue or appears to be compromised in any way. If there is any doubt that a party is not in his or her right mind, down tools and come back to the table later. Consider the need for counselling or therapy before continuing.
Make full disclosure: Always make full disclosure of all financial facts, whether disclosure has been requested or not. Have documentation available of current income, past income, bank and investment account balances, outstanding debts, property values, values of shares and options, art and jewellry appraisals and so on.
Never lie: Intentionally misleading someone about a value, a debt, past and future income expectations or any other relevant factor will always undermine the strength of an agreement. Be scruplously honest and transparent at all times.
Know the law: The Divorce Act and the Family Relations Act say when and why spousal support and child support should be paid. The Divorce Act talks about how much time children should have with their parents. For married couples, the Family Relations Act talks about how assets should be divided. Know how the law treats these different subjects and ensure the agreement roughly reflects the law.

==Drafting Considerations==

First of all, it is always best to have a qualified professional prepare any sort of agreement. While the Self-Counsel Press forms will likely be considered to be legally binding, a family law lawyer will be best able to advise you of the duties and obligations involved in the contract, the rights you will be giving up by entering into the contract, as well as other unexpected but critical issues the agreement might involve, such as:

income tax consequences;
the transfer of property; or,
liabilities to third-parties and creditors.
This segment discusses a few things you might want to keep in mind for those times when hiring a lawyer is not practical or possible.

===Don't Use "Legalese"===

Some people are tempted to use words that sound particularly legal, like using the word "issue" to refer to children. Avoid this at all costs, and try to use plain language to express the content of your agreement. Words like "issue" have a particular legal meaning, in this case first-generation, directly-descended heirs, that are often at odds with what people think the term means. As a result, if you use legalese there is a risk that your contract won't wind up meaning quite what you think it means.

===Be as Clear as Possible===

Ask yourself these questions:

What would a complete stranger think of your agreement?
Would the stranger be able to understand what you mean?
Are any parts of the agreement vague or capable of more than one meaning?
Do you understand what the agreement means?
If a term of your agreement has more than one possible interpretation, it may lead to future conflict between yourself and the other party. If there are two cars, make sure each car is identified separately and distinctly, like "Jerry's Ford Pinto" and "Mary's Pontiac Sunfire," and always refer to those cars in that way, and never just as "the car." If a term might mean more than one thing, change it to be more precise and more specific!

Also, remember that while you and your partner may know exactly what "the old spoons" might mean, a court may not, especially if there are a lot of different sets of spoons involved. It's best to be specific, like "the Teaspoons of the World silver spoon collection Jerry inherited from his grandmother Mabel."

===Avoid Agreeing to Agree===

An agreement that requires a further, future agreement — "the household furniture will be divided as Mary and Jerry will agree" — is open to further, future conflict. Whenever possible, try to limit an agreement to all that can be agreed upon at the moment and try to agree on as much as possible.

===Remember the Loose Ends===

It is always best to tie up any loose ends. This may require some thought as it isn't always obvious what else needs to be included. If a house has to be sold, for example, who will list it and hire the realtor? Who will live in it until the sale? How will the proceeds be dealt with? These things should all be specified, where at all possible.

===Be Realistic===

You've got to live with the agreement; make sure it is something you can live with, not just now but in three or five years. Make sure that the obligations you must fulfill under the agreement are things that you can reasonably fulfill. Promising to pay off a credit card within a year, for example, isn't always the easiest thing to do and it isn't always practical.

Sometimes people who have separated are desperate to have done with it, to have a deal signed and finished. If you feel rushed into an agreement, step back and take two (or twenty-two) deep breaths. The world will not end if you take a moment or a week to think about something. It is critical that whatever you wind up agreeing to is something that you will still be okay with next month, next year and in ten more years. Be patient and take your time.

===Use Sample Clauses with Caution===

Before copying a term from a someone else's agreement into your own agreement, make sure you fully understand what that term means. A clause that suits one couple in one situation may be entirely inappropriate for another couple. It is all too easy to adopt a term that sounds good or appropriate, without fully considering what that term means. Be cautious, be prudent, be careful.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

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Enforcing Orders in Family Matters

2013-02-27T05:02:47Z

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Having an order or a family law agreement is one thing. Whether or not the terms of that order or agreement are followed is another. Most people are content to abide by whatever formal arrangement is in place. In those cases where someone fails to honour his or her obligations, steps must be taken to secure that person's compliance and enforce the order or agreement.

The chapter will provide a brief comment on the enforcement of orders generally, and discuss the enforcement of orders for spousal and child support, and the role of FMEP in this regard, and the enforcement of orders for custody and access. This chapter will also discuss contempt of court applications and review the enforcement of separation agreements.

I. Some Preliminary Comments

You sometimes hear people complaining about how the court didn't help them do this or that, or how the court failed to protect their children or their car or their chihuahua. A popular misunderstanding about the court system is that it polices and enforces its own decisions. It doesn't. That's up to you.

In a very narrow sense, the job of the court is to hear the claims brought before it and to make a decision about what is fair and proper in the circumstances of each claim. The person who brings the claim, the Claimant, is responsible for prosecuting his or her case. The Respondent's job is to defend the Claimant's case and sometimes press a claim of his or her own. The job of the judge is to hear the parties, and then determine a just result of the competing claims and defences.

The court's decision is a court order. It is binding on the parties and they risk being held in contempt of court if they act contrary to that decision.

Once that decision is made, however, the court's job is over and it is each party's responsibility to see to it that the order is followed. The court is not responsible for supervising its own orders and monitoring the parties to make sure that they're obeying each term of every order it makes. If the Respondent notices that the Claimant isn't living up to a term of an order, the Respondent is responsible for enforcing the order, whether the actions taken to enforce the order include asking the court to find the Claimant in contempt or garnishing the Claimant's wages; the Claimant has the same rights against the Respondent.

It is not the court's job to enforce its orders, it is yours. It's up to you to do something about it when your ex flouts an order.

The Supreme Court of British Columbia has the power to punish for contempt of court, disobedience of its orders or directions, and this is one way you can seek to have your order enforced. Once you bring an application to court for a finding that the person breaching the order be "found in contempt," the court can punish that person by a fine, jail time, or both a fine and some time in jail. Again, it is your responsibility to make this application, the court won't do it for you.

It is true that the court system can be complex and challenging. That isn't an excuse for you not to take the steps that are required to enforce an order, and it doesn't give anyone a legitimate reason to complain that the system didn't help them out. If you are finding it too difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you.

Back to the top of this chapter.

II. Enforcing Orders and Agreements for Support

When a person obliged to pay child support or spousal support stops making those payments, a debt begins to accumulate in favour of the recipient. This debt is known as the payor's arrears of support.

Orders made under the federal Divorce Act can be enforced in British Columbia and in any other province. They may also be enforceable outside of Canada, depending on whether the jurisdiction in which the order is to be enforced has an agreement with the federal government about the mutual enforcement of support orders.

Orders made under the provincial Family Relations Act can be enforced in British Columbia, and in other provinces, when they are registered or filed in court under the province's legislation on family law, usually the Interjurisdictional Support Orders Act or an act like it. They can also be enforceable outside of Canada, depending on whether the jurisdiction in which the order is to be enforced has an agreement with the federal government about the mutual enforcement of support orders.

Separation agreements and other kinds of family agreements that provide for the payment of spousal support and child support can be enforced as if they are orders of the court when they are filed in the Provincial (Family) Court under s. 121 of the Family Relations Act, or in the Supreme Court under s. 122 of the act.

The website of the Department of Justice has a helpful overview of support enforcement mechanisms in Canada.

A. The Family Maintenance Enforcement Program
The Family Maintenance Enforcement Program is a government service operated by a private company under provincial legislation, the Family Maintenance Enforcement Act. FMEP will monitor payments as they are made (or not made), and calculate the interest accumulating on any arrears. FMEP is a free service.

1. Recipients of Support
FMEP will enforce the provisions of support orders that are registered with the program, as well as the support provisions of family law agreements that have been filed in court. FMEP can take all the steps a private debtor can to collect on any outstanding arrears and will supervise monthly payments. There is no cost to register with FMEP and you do not need to hire a lawyer to have FMEP get to work on your behalf.

FMEP has extremely long arms and the steps it can take to compel payment are substantial, including:

the diversion of federal payments to the payor (like tax refunds and CPP benefits);
the garnishment of wages;
preventing a payor from renewing his or her driver's licence;
seizing a payor's passport and federal licences (like pilots' licences);
putting a lien on property owned by the payor; and,
arranging for the payor's arrest.
For the payee, FMEP is a free service. While FMEP may not be as quick as a lawyer to collect on arrears or compel regular payment, I recommend its services.

If you choose to enrol with FMEP, you might want to stop any efforts you have made to collect from the payor, as your actions may conflict or interfere with steps beng taken by FMEP and frustrate their process. As well, you'll need the permission of the Director of FMEP if you want to take any independent steps to collect support on your own.

2. Payors of Support
People usually assume that when FMEP is involved it is the payor who is delinquent rather than the recipient. It can sometimes happen, usually as part of a larger dispute, that a recipient will refuse to accept the payor's support payments. If a payor simply throws up his or her hands and says "fine, I'll keep the money," the payor can find him- or herself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may be liable to pay the money the recipient refused to accept!

Payors who find themselves in such a situation can enrol in FMEP, just the way that recipients do. FMEP will accept the payor's payments and attempt to forward them to the recipient. If the recipient still refuses to accept the payments, FMEP will keep the payments on behalf of the recipient as well as a record of the payments made. This will protect the payor's interests at the hearing of the larger problem, if there ever is one, and will save the payor from falling into arrears.

There is a serious potential downside for payors who enrol in FMEP. Once you have enroled, you can't escape the program without the consent of the recipient. In other words, once you've enroled you may very well find yourself stuck there until your support obligation ends.

B. Collecting Without the Help of FMEP
Recipients can take steps to enforce orders and family agreements without FMEP's involvement. Such actions can include:

forcing the production of financial statements from the payor;
obtaining an order compelling the disclosure of the payor's employer, assets and sources of income;
applying for an order garnishing the payor's wages or bank accounts; and,
summoning the payor to a special hearing for an order for the payment of the arrears and the terms on which the arrears will be paid.
Other means of obtaining financial information and compelling payment are available under the Supreme Court's Rules of Court and under the provincial Court Order Enforcement Act. These remedies include the garnishment of wages, forcing the sale of property to satisfy the arrears, and commencing proceedings against the payor for contempt of court among other things.

Rule 15-4 of the Supreme Court Family Rules: Writ of Execution
Rule 15-6: subpoenas to debtors
Rule 15-8: Sales by the Court
Rule 15-7: Examination in Aid of Exectuion
Rule 21-7: Contempt of Court
Part 5 of the Court Order Enforcement Act: Writ of Exection
Section 3 of the Court Order Enforcement Act: attachment of wages
While there is a host of other relief available, all things considered the cheapest and most efficient course of action is to register with FMEP. If you are enroled with FMEP it is recommended that you stop any other collection tactics you have embarked on. Any actions you take privately may interfere with FMEP's actions and frustrate their efforts.

Back to the top of this chapter.

III. Enforcing Orders for Custody or Access

Enforcing orders or agreements for custody or access is a lot more difficult than enforcing orders or agreements for arrears of support. The problem here is that you can't apply to court for an order that the defaulting party obey a previous order. Often the only remedy available is to try to enforce the order or agreement by making an application for a ruling that the defaulting party is in contempt of court or in breach of the agreement. A finding of contempt of court is punishable by a fine, a jail sentence, or both a fine and a jail sentence.

Orders for custody of and access to children can be enforced under the Divorce Act, the Family Relations Act, the Criminal Code, the Supreme Court Family Rules, and, in certain circumstances involving people located outside of Canada, the Hague Convention on the Civil Aspects of International Child Abduction.

Orders made under the Divorce Act can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 3 of the Family Relations Act, and an order made outside the province is considered to considered to be enforceable as an order of the courts of this province once it has been filed in our courts.

Section 121 of the Family Relations Act allows an agreement dealing with custody or access to be filed in the Provincial (Family) Court, and s. 122 allows such agreements to be filed in the Supreme Court. Once an order is filed in court it will be treated as if it were an order of the court, and can be enforced as if it were an order of the court.

A. Custody
Different remedies are available to enforce custody orders depending on whether the order needs to be enforced inside Canada or outside Canada.

1. Inside Canada
Where custody is withheld and the child is inside Canada, there are a number of options available to obtain the return of the child:

A person who has custody of a child because of a court order can make an seek an order, on an ex parte application, that the police or RCMP apprehend the child and return him or her to the party's care under s. 36 of the Family Relations Act.
Section 292 of the Criminal Code makes the interference with a parent's right to custody under a court order a criminal offence, so a complaint to the police is another option.
Rule 21-7 of the Supreme Court Family Rules outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by jail, by a fine, or both, but this still may not result in the return of the child.
The family law legislation of most other provinces will contain terms similar to those found in our Family Relations Act which will allow custody and access orders made in British Columbia to be filed in their courts for enforcement purposes.

2. Outside of Canada, Court Enforcement
Some countries have agreements with Canada and British Columbia that they will respect and enforce each other's court orders, or a provision in their family law legislation that is similar to our Family Relations Act and allows British Columbia orders to be registered in their courts for enforcement purposes. Under our act, orders that are registered with our courts are treated as if they were an order of our courts and can be enforced accordingly.

Where there is no similar provision, you may have no choice but to commence a proceeding in that country to obtain a new order on the terms of the British Columbia order. All courts pay a great deal of deference to the orders other courts have made, and the British Columbia order should be very persuasive to another court unless the British Columbia order was obtained by fraud, misrepresentation or in the face of foreign proceedings concerning the child.

3. Outside of Canada, The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction can be used to deal with cases of international child abduction. The Convention is an international treaty which requires foreign governments who have signed the Convention to take certain steps to return the child to the custodial parent when there is "a grave risk of physical or psychological harm" to the child and there is an order in place governing which parent should have the child.

The Hague Convention only applies between states which have signed the Convention. As of 1 February 2010, the countries who have agreed to enforce custody orders with Canada are:

Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Fasom, Chile, China (Hong Kong and Macau only), Columbia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark (except for the Faroe Islands and Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Mauritius, Mexico, Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguya, Pero, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia and Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, the UK (including the Isle of Man, the Cayman Islands, the Falkland Islands, Montserrat and Bermuda), Uruguay, the USA, Uzbekistan, Venezuela and Zimbabwe.
As of 1 February 2010, the signatory countries who have not agreed to enforce custody orders with Canada, but will enforce custody orders with other countries (shame on them), are:

Guatemala, Nicaragua and Thailand.
Countries not listed above have elected not to participate in the convention. For more information and the current standing of signatory nations, check out the website of the Hague Conference on Private International Law, which reports on the status of the various Hague Conventions.

B. Access
Access can be very difficult to enforce. In general, the best way to enforce an access order is by way of an application for an order that the defaulting party be held in contempt of court, but only the Supreme Court can make orders about contempt. For Provincial Court matters, you may have to consider laying an Information under the provincial Offence Act.

1. Contempt
It usually takes more than one clear failure to provide access before the court will make a finding that the other party is in contempt of court. Even then, because of the harsh consequences of such a finding, unless the other party's behaviour has been absolutely atrocious and unreasonable, you may have to content yourself with the court issuing a tongue-lashing to the other party. Sometimes, however, this is enough to secure compliance.

If your access order says only that you will have "reasonable and generous access," or otherwise fails to specify the terms of your access to your child, you may be able to get the sort of access you want by asking the court to specify the terms of your access. It is too easy for a custodial parent to avoid allowing access that is "reasonable and generous" simply by saying "well, it isn't convenient for me," or "the children are busy this weekend." Your first recourse should be to ask the court for a precise schedule for your access — including weekends, holidays and evenings during the work week, or whatever else you'd like. If the vague schedule isn't working, the only answer is to ask the court to fix a schedule. Often parents who are experiencing problems with vague orders or agreements will find that a more specific schedule will solve their problems.

If that doesn't help, however, you should consider making an application for an order that the other parent be found in contempt of court for breaching the access order. If even that doesn't work, you may have no choice but to ask the court to make an order that the custodial situation be reversed.

More information about contempt applications is available in the next segment.

2. The Offence Act
Some provincial laws say that doing or not doing a particular thing is an offence. The Motor Vehicle Act and the Fisheries Act are chock full of offences. Under s. 128(3) of the Family Relations Act, it is an offence to interfere with a right of access:

A person who, without lawful excuse, interferes with the custody of, or access to, a child in respect of whom an order for custody or access was made or is enforceable under this Act commits an offence.
Offences may be prosecuted under the Offence Act, which can punish by jail, a fine, or both jail and a fine. Proceedings under the act are commenced by filing a sworn statment, called an Information, in Provincial Court. Under ss. 25 and 26, any person may lay an Information before a judge, and the judge must issue a summons to the purported offender if "a case for doing so is made out."

More information about Offence Act proceedings is available in the next segment on contempt of court.

C. Access Problems and Changing Custody
It is a popular misunderstanding that a deniual of access is enough to make an easy application for a change of custody. While this is certainly possible, such applications are not usually successful, and should only be made under the most extreme of circumstances.

However, where a parent with has chronically withheld access without good reason, it may be the case that the only pratical way to resolve access problems is to make a change in custody in favour of the other parent, in other words, to reverse the existing situation so that the other parent is the parent who has access to the children.

The court's general view about custody and access is that it is in the best interests of children to maximize their contact with both parents. When an access order has been made, the intention is to set out a schedule under which the children will see each parent. When one parent, normally the parent who has either sole custody or the children's primary residence, withholds access, he or she is cutting the children off from the other parent. This is plainly not in the children's best interests, and the case law suggests that the only practical solution may be to give the children's primary residence to the other parent, on the ground that he or she is the parent most willing to facilitate access and ensure that the children see both of their parents, as was the case in Langille v. Langille, a 1985 decision of the BC Supreme Court.

Back to the top of this chapter.

IV. Contempt of Court

If the other party persistently refuses to live up to his or her obligations under a court order, you may have no choice but to make an application to court for a finding that the other party is in contempt of court. Contempt of court is an offence punishable by a fine, jail time, or both a fine and jail time. Both the Supreme Court and the Provincial (Family) Court have the power to punish someone for breaching their orders, however their proceedures for these applications are very different and the Provincial Court's power is very limited.

A. Provincial Court Contempt Process
There are no specific provisions in the Provincial Court (Family) Rules or in the Provincial Court Act which deal with contempt of court, except for contempt of court occuring in court. As a result, you can't bring on a contempt application by a Notice of Motion, which his how you would normally deal with an application for an interim order, and the proceedure is somewhat complex. What you can do is lay an Information under the provincial Offence Act.

This is what you need to know about laying an Information.

Section 2(4) of the Provincial Court Act says that the Provincial Court (which includes Family Court, Youth Court and Small Claims Court) may "commit for contempt of court."
Section 128(3) of the Family Relations Act makes it an offence to interfere with an order for custody or access made under the act.
Section 2 of the Offence Act says that "offences created under an enactment" — such as the offence created under s. 128(3) of the Family Relations Act — is punishable on summary conviction, in other words, after someone is found guilty of the offence.
Section 4 of the Offence Act says that where the punishment for the offence isn't specified (which is the case with s. 128 of the Family Relations Act), the punishment is a fine of up to $2,000, six months in jail, or both.
Section 8 of the Offence Act says that "every justice" has the authority to hear applications for a finding that someone be in contempt, and s. 1 of the act defines "justice" as including judges of the provincial court.
Section 11 of the Offence Act requires that applications under the act be made by filing an Information in Form 2, and s. 25(1) of the act says that "any person" can file the Information. An Information must be sworn on oath, just like an Affidavit, and must be in the form specified under the act. Form 2 can be found at the end of the Offence Act.
Under s. 26 of the Offence Act, the Information is heard by a judge without notice to the other person, and the judge may then issue a summons requiring the other person to attend a trial to determine whether he or she is in contempt of court.
Under s. 28(1) of the Offence Act, a peace officer must serve the summons on the under person.
To summarize, making an application for a finding that someone be found in contempt of a Provincial (Family) Court order is a bit like starting a private prosection. You must swear an Information before a lawyer or notary public, and bring the Information to a judge. The other person need not be notified that you are bringing the Information, and, in fact, will only find out about it after he or she is served with the summons. The judge to whom you present the Information will determine whether or not there's an arguable case that the other person may have committed an offence under the Offence Act, and, if so, will issue the summons.

A peace officer will serve the summons on the other person. The two of you will have to come to court on the date set out in the summons, and set a date for your application to be heard. The court clerk will provide you with a Notice of Hearing.

When the date on the Notice of Hearing comes around, you'll have to present evidence to the court that the other person is, in fact, guilty of an offence by "interfering with the custody of, or access to, a child in respect of whom an order for custody or access was made," under s. 128 of the Family Relations Act. If the judge hearing the case agrees, the other person will be found guilty of the offence, and you will have to argue about how the punishment (the fine, jail, or both) should be assessed.

Be warned, this process is slightly complex and definitely unusual. As a result, the court clerks may be unsure about how to handle your complaint. The rules and statuory authority supporting these complaints is set out above to allow you to argue your case with the court clerk and insist that you be allowed to proceed with your complaint and exercise your rights under the Offence Act.

B. Supreme Court Contempt Process
Unlike the provincial court, the Supreme Court of British Columbia has something called "inherent jurisdiction," meaning that the scope of its authority is limited only by the Canadian Constitution and the rules of the common law. As a result, the court can punish a party for contempt of court without being confined to the provisions of any particular statute and whether or not the party's conduct does or does not constitute an "offence" under the Offence Act.

The rule governing contempt applications is Rule 21-7 of the Supreme Court Family Rules. You can bring an application for a contempt finding under the normal rules governing interim applications. The only difference is that you must personally serve the other person with your Notice of Application and Affidavit for the contempt application; you cannot simply mail or fax it to his or her address for service.

Because the consequences of a finding of contempt can include jail, the court will be very particular about how the application is prepared and presented. You may want to consider consulting with a lawyer about process and procedure, and the legal test to prove contempt, before you start working on your materials.

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Interim Applications in Family Matters

2013-02-27T05:00:19Z

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Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short term orders like these, you must make an ''interim application'' in court.

This page provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts which should be proved for a variety of common interim applications.

'''JP almost done...'''

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''M.(D.R.) v. M.(R.B.)'', a 2006 case of the Supreme Court, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The Subjects of Interim Applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:

*Where will the children live most of the time?
*What time will each parent have with the children?
*Should child support be paid?
*Should spousal support be paid, and, if so, how much should be paid?
*Should only one spouse have the right to live in the family home?
*Should the property be frozen?
*Is a protection order necessary?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:

#not disposing of property;
#not racking up debt;
#not talking to the children about the issues in the court proceeding; or,
#not going to a particular place.

Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:

#not communicating with the family member;
#not going to a place where the family member goes to school or works;
#not possessing weapons; or,
#not stalking the family members.

Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to:

#set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents;
#force someone to submit to a medical or psychiatric examination;
#authorize the preparation of a custody and access report; or,
#fix dates for hearings like Trial Management Conferences and Settlement Conferences.

Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or finishes trial.

===Making Interim Applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending an court proceeding and works more or less like this:

#the person making the application, the ''Applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''Respondent'' or the ''Application Respondent'';
#the Application Respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the Applicant;
#the Applicant replies to the Application Respondent's reply; and,
#on the date of the hearing, the Applicant argues why the order sought should be made, the Application Respondent argues why the order sought shouldn't be made, and the judge or master hearing the application makes a decision one way or the other (or, often, a bit of both ways).

The requirements, deadlines and court forms for each of these steps are governed by the Rules of Court. The rules also set out how the application is set for hearing and heard and the nature of the court's the authority to decide the issues before it.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, or to freeze the family property, for example.

The main Rules of Court about the application process and the forms used in this process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: Judicial Case Conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

Sample court forms and blank court forms for download are available in ______ .

===When to Make an Application===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. Applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately, as might be the case if a parent is threatening to leave the country with the children or torch the family home.

Rule 7-1(3) sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

#when an application is being made for an order restraining either or both parties from disposing of family assets;
#when the order will be made with the agreement of both parties; or,
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC.

Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC.

JCCs are discussed in more detail in the chapter _____ .

===Making an Application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the ''Application Respondent'', you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2, usually by sending them to the Application Respondent's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the Application Respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the Application Respondent. The timelines for interim applications are discussed below in more detail.

====Notice of Application====

The Notice of Application describes:

#the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for);
#the facts supporting the application;
#the legal grounds on which the application is made;
#the affidavits or other evidence on which the Applicant relies on in support of the relief sought;
#the amount of time the Applicant thinks it will take for the application to be heard; and,
#the date picked by the Applicant for the hearing of the application.

The form which must be used is Form F31, set out in the Supreme Court Family Rules. The cost to file an application is $80.00.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Replying to an Application===

You must reply to an interim application if you object to any of the orders the Applicant is asking for. If you agree with all of the orders sought by the Applicant, you don't need to do anything.

To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the Applicant by ordinary service, usually by sending them to the Applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Application Response and supporting affidavits must be filed in court and served on the Applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

====Application Response====

An Application Response describes:

#the orders sought by the Applicant which the Application Respondent agrees to;
#the orders that the Application Respondent opposes;
#the orders to which the Application Respondent neither opposes nor consents (this is called ''taking no position'' on an order);
#the facts supporting the Application Respondent's position;
#athe legal grounds on which any opposed orders are opposed;
#the affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and,
#the amount of time the Applicant Respondent thinks it will take for the application to be heard.

The form which must be used is Form F32, set out in the Supreme Court Family Rules. There is no fee to file an Application Response.

The Respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Application. This is called a ''cross-application''. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Responding to the Reply===

The Applicant may prepare an affidavit responding to the affidavits provided by the Application Respondent. This new affidavit must be limited to answering new issues raised by the Application Respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the Applicant's first Affidavit.

The Applicant must file any responding affidavits in court and serve them on the Application Respondent by 4:00pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the Application Respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the Application Respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the Application Respondent to file and make arguments based on a new affidavit.

===A Short Note about Time Estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the Trial Coordinator at the court registry, and a hearing date may not be available for several weeks. Applications that will take less than two hours are heard on a day picked by the Applicant, although it's always best if the Applicant picks the date in consultation with the Application Respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be thirty. The court clerk will generally sort the applications in order of the time estimates, so that a five minute application will be heard fairly quickly while a ninety minute application might not be heard until much later in the day.

===Application Records===

The Applicant must prepare the ''Application Record'' for the application. When both parties have an application scheduled to be heard on the same day, the parties must cooperate and prepare a joint Application Record.

The Applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the Applicant will be asking the court to hear. The Applicant must serve a copy of the index of the Record on the Application Respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your Record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45pm, and I suggest you give yourself plenty of time to file your Record and get to the registry early.

An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including a passing a couple of hex bolts through the left-hand margin.

The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record;
#the Notice of Application (Tab 1);
#the Response to Application (Tab 2); and,
#the Affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases.

Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#the court file number, court registry and the names of the parties, they way these appear at the top of all other court documents;
#the title of the document being filed ("Application Record");
#the claimant's address for delivery, telephone number and fax number;
#the respondent's address for delivery, telephone number and fax number; and,
#the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.

A sample cover page is available in _______.

===The Hearing===

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will walk up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. (The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order.) The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application."

The Applicant will address the judge first, and present his or her case, explaining:

#what orders the Applicant is asking the judge to make;
#why the judge can make the orders the Applicant is asking for; and,
#the facts which motivated the application.

The Application Respondent will then present his or her side of the case and explain why the judge shouldn't make the orders the Applicant is asking for. The Applicant will then have a chance to briefly answer the Application Respondent's argument. The Application Respondent may have the opportunity to address the Applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the Applicant and Application Respondent questions during their presentations to clarify things.

A discussion of courtroom protocol is available in the How Do I ? chapter of this website.

After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision''.

===After The Hearing===

It is usually the job of the Applicant's lawyer to turn whatever the judge or master has decided into a written order. If the Applicant doesn't have a lawyer, the lawyer for the Application Respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the "official" order of the court, the order is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and change depending on whether the application is for a interim order, a final order or an order changing a final order.

====Making an Application====

The Applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''twelve business days'' of the hearing.
*For applications to change a final order, within ''twenty-one business days'' of the hearing.

====Replying to an Application====

The Application Respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''fourteen business days'' of being served.

====Responding to a Reply====

The Applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application Records====

The Applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the Application Respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample Timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING.'''
|}

In this example, the Application Respondent's materials are due on Monday on the second week, one week after the date of service, and the Applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the Application Respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the Applicant serves the interim application materials and the date of the hearing: all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A Short Note about Courtesy===

The Supreme Court Family Rules allow an Applicant to simply set the hearing date without consulting the Application Respondent. Although this gives the Applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the Application Respondent, you can expect the Application Respondent to show up on the hearing date and ask the court for an adjournment a delay of your application.

If the Application Respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the Application Respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or his or her lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications.

If you can make the call, try to reach an agreement on:

#the date when you'll have the application materials to the Application Respondent;
#the date when the Application Respondent will get his or her reply materials to you; and,
#the hearing date.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''Applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''Respondent'', the person against whom the application has been brought. The Respondent is not required to file anything in reply to the application.

Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits. As a result, the exchange of Affidavits is not a mandatory part of the process.

The principle Rules of Court which relate to these documents and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for registries designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation program

A ''registry'' means a particular courthouse of the Provincial Court.

===When an Application can be Brought===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Reply to the Applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for Parenting After Separation program and whether it is also a family justice registry.

====Family Justice Registries====

Rule 5 of the Provincial Court Family Rules applies to those registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

#Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court;
#Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute;
#Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor; and,
#Rule 5(8) sets out some exceptions to the rule that may allow a party to ask a judge for to be exempted from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where the court proceeding involves orders about the care of children or child support. Rule 21 sets out yet more hoops to jump through, however the Parenting After Separation program is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

#Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program;
#Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance;
#Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years; and,
#Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, for most parents, once Rules 5 and 21 have been complied with they can follow the standard rules for bringing on interim applications, described below.

====Family Case Conferences====

Family Case Conferences are similar in many ways to the Judicial Case Conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

===Making an Application===

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard court form, Form 16, that comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with his or her copy at least seven dates before the date the application is set to be heard.

The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

===Defending an Application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response.

===The Hearing===

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) says that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.) Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to one side of the centre podium.

The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. Stand whenever the judge speaks to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in affidavit format. Affidavits can be used, but for some reason this is rarely the case. Most judges would prefer to have an affidavit, and if you can prepare one, you should. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them, or may make an affidavit in reply to the Applicant's affidavit.

Once the Applicant's case is done, the Respondent may present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses.

A discussion of courtroom protocol is available in the How Do I ? chapter.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The Respondent will be able to reply to the Applicant's argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply.

Once everyone is done, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may reserve judgment until some later time.

===After the Hearing===

If the parties to the hearing were represented by lawyers, the Applicant's lawyer will usually draft an order based on the judge's judgment. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

==Common Interim Applications==

The following discussion reviews the basic facts that will usually need to be proven in support of the most common kinds of interim applications in family law matters. This is only a rough guide as the particular facts that are important will change from case to case.

STOPPED... must include new FLA tests

===Care of Children===

When making the first application about custody and access, or parenting arrangements and contact, important facts will usually include:

#the children's names, birthdates and ages;
#where the children go to school and what grade they're in;
#any important health or educational concerns;
#the occupation of each parent;
#each parent's usual work schedule;
#how the parents shared the parenting of the children while they were together;
#who was most responsible for arranging things like visits to the doctor and dentist;
#who was most responsible for looking after school issues, like parent-teacher meetings and making sure homework was done;
#how the parents have shared the parenting of the children since they separated;
#the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation; and,
#a description of any actual problems with a parent's capacity to care for the children.

If the application is to change an order or an agreement about the care of the children, important facts will include the facts which address the threshold legal test...

#what has changed since the order or agreement was made;
#was this change was known of or anticipated at the time of the order or agreement; and,
#how has this change has affected the best interests of the children.

...as well as other important facts such as:

#how has the order or agreement worked out;
#did the parents follow the terms of the order or agreement; and,
#has the order or agreement met the children's needs.

===Child Support===

The important facts that go into an application for child support are:

#the children's names, birthdates and ages;
#how the children's time is divided between the parents;
#whether some or all of the children are stepchildren to the person who is to pay child support;
#whether some or all of the children are receiving child support from another parent;
#the nature of each parent's employment; and,
#each parent's employment income.

Applications about child support typically require that each parent cough up certain documents to establish his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or chequestubs from their employment. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income;
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or new spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Spousal Support===

When making the first application for spousal support, the important facts will include:

#the date the parties began to live together and the date they married;
#the date of separation;
#the parties' ages, including the proposed recipient's age at the date of separation;
#each party's present health;
#any factors limiting a party's ability to obtain employment;
#the parties' present employment circumstances;
#the parties' employment history during marriage, including any periods of unemployment;
#each party's present income and the sources of that income;
#a description of the each party's living expenses after separation;
#any career sacrifices made during the relationship;
#the parties' education and training history, prior to and during the marriage;
#a description of any education and training taken after separation, especially any education geared to finding employment;
#the ages and school status of the children at the date of separation; and,
#the arrangements that have been made for the care and control of any children.

If the application is to change an order or an agreement about spousal support, important facts will include the facts necessary to address the threshold legal test...

#what has changed since the order or agreement was made; and,
#was this change was known of or anticipated at the time of the order or agreement.

...as well as other important facts such as:

#each party's income at the time of the application;
#each party's income at the time of the most recent order or agreement;
#the steps the recipient has taken to become financially self-sufficient;
#education or training taken by the recipient since the order or agreement was made;
#any employment taken by the recipient since the order or agreement was made;
#any changes in the employment circumstances of the payor;
#whether the recipient has remarried or is in a new common-law relationship; and,
#whether the payor has acquired new family support obligations since the order or agreement was made.

All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Restraining Orders===

The court can make a number of orders where someone is in need of protection, depending on what the person is in need of protection from. More information about these orders can be found in the chapter Other Family Law Issues > Family Violence.

The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Justice Education Society about interim applications featuring a great series of instructional videos.

{{JP Boyd on Family Law Navbox|type=chapters}}

Interim Applications in Family Matters

2013-02-27T04:59:22Z

96.48.61.138: /* Common Interim Applications */

{{JP Boyd on Family Law TOC}}

Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short term orders like these, you must make an ''interim application'' in court.

This page provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts which should be proved for a variety of common interim applications.

'''DRAFT UNEDITED'''

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''M.(D.R.) v. M.(R.B.)'', a 2006 case of the Supreme Court, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The Subjects of Interim Applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:

*Where will the children live most of the time?
*What time will each parent have with the children?
*Should child support be paid?
*Should spousal support be paid, and, if so, how much should be paid?
*Should only one spouse have the right to live in the family home?
*Should the property be frozen?
*Is a protection order necessary?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:

#not disposing of property;
#not racking up debt;
#not talking to the children about the issues in the court proceeding; or,
#not going to a particular place.

Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:

#not communicating with the family member;
#not going to a place where the family member goes to school or works;
#not possessing weapons; or,
#not stalking the family members.

Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to:

#set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents;
#force someone to submit to a medical or psychiatric examination;
#authorize the preparation of a custody and access report; or,
#fix dates for hearings like Trial Management Conferences and Settlement Conferences.

Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or finishes trial.

===Making Interim Applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending an court proceeding and works more or less like this:

#the person making the application, the ''Applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''Respondent'' or the ''Application Respondent'';
#the Application Respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the Applicant;
#the Applicant replies to the Application Respondent's reply; and,
#on the date of the hearing, the Applicant argues why the order sought should be made, the Application Respondent argues why the order sought shouldn't be made, and the judge or master hearing the application makes a decision one way or the other (or, often, a bit of both ways).

The requirements, deadlines and court forms for each of these steps are governed by the Rules of Court. The rules also set out how the application is set for hearing and heard and the nature of the court's the authority to decide the issues before it.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, or to freeze the family property, for example.

The main Rules of Court about the application process and the forms used in this process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: Judicial Case Conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

Sample court forms and blank court forms for download are available in ______ .

===When to Make an Application===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. Applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately, as might be the case if a parent is threatening to leave the country with the children or torch the family home.

Rule 7-1(3) sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

#when an application is being made for an order restraining either or both parties from disposing of family assets;
#when the order will be made with the agreement of both parties; or,
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC.

Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC.

JCCs are discussed in more detail in the chapter _____ .

===Making an Application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the ''Application Respondent'', you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2, usually by sending them to the Application Respondent's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the Application Respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the Application Respondent. The timelines for interim applications are discussed below in more detail.

====Notice of Application====

The Notice of Application describes:

#the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for);
#the facts supporting the application;
#the legal grounds on which the application is made;
#the affidavits or other evidence on which the Applicant relies on in support of the relief sought;
#the amount of time the Applicant thinks it will take for the application to be heard; and,
#the date picked by the Applicant for the hearing of the application.

The form which must be used is Form F31, set out in the Supreme Court Family Rules. The cost to file an application is $80.00.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Replying to an Application===

You must reply to an interim application if you object to any of the orders the Applicant is asking for. If you agree with all of the orders sought by the Applicant, you don't need to do anything.

To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the Applicant by ordinary service, usually by sending them to the Applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Application Response and supporting affidavits must be filed in court and served on the Applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

====Application Response====

An Application Response describes:

#the orders sought by the Applicant which the Application Respondent agrees to;
#the orders that the Application Respondent opposes;
#the orders to which the Application Respondent neither opposes nor consents (this is called ''taking no position'' on an order);
#the facts supporting the Application Respondent's position;
#athe legal grounds on which any opposed orders are opposed;
#the affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and,
#the amount of time the Applicant Respondent thinks it will take for the application to be heard.

The form which must be used is Form F32, set out in the Supreme Court Family Rules. There is no fee to file an Application Response.

The Respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Application. This is called a ''cross-application''. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Responding to the Reply===

The Applicant may prepare an affidavit responding to the affidavits provided by the Application Respondent. This new affidavit must be limited to answering new issues raised by the Application Respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the Applicant's first Affidavit.

The Applicant must file any responding affidavits in court and serve them on the Application Respondent by 4:00pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the Application Respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the Application Respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the Application Respondent to file and make arguments based on a new affidavit.

===A Short Note about Time Estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the Trial Coordinator at the court registry, and a hearing date may not be available for several weeks. Applications that will take less than two hours are heard on a day picked by the Applicant, although it's always best if the Applicant picks the date in consultation with the Application Respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be thirty. The court clerk will generally sort the applications in order of the time estimates, so that a five minute application will be heard fairly quickly while a ninety minute application might not be heard until much later in the day.

===Application Records===

The Applicant must prepare the ''Application Record'' for the application. When both parties have an application scheduled to be heard on the same day, the parties must cooperate and prepare a joint Application Record.

The Applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the Applicant will be asking the court to hear. The Applicant must serve a copy of the index of the Record on the Application Respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your Record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45pm, and I suggest you give yourself plenty of time to file your Record and get to the registry early.

An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including a passing a couple of hex bolts through the left-hand margin.

The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record;
#the Notice of Application (Tab 1);
#the Response to Application (Tab 2); and,
#the Affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases.

Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#the court file number, court registry and the names of the parties, they way these appear at the top of all other court documents;
#the title of the document being filed ("Application Record");
#the claimant's address for delivery, telephone number and fax number;
#the respondent's address for delivery, telephone number and fax number; and,
#the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.

A sample cover page is available in _______.

===The Hearing===

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will walk up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. (The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order.) The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application."

The Applicant will address the judge first, and present his or her case, explaining:

#what orders the Applicant is asking the judge to make;
#why the judge can make the orders the Applicant is asking for; and,
#the facts which motivated the application.

The Application Respondent will then present his or her side of the case and explain why the judge shouldn't make the orders the Applicant is asking for. The Applicant will then have a chance to briefly answer the Application Respondent's argument. The Application Respondent may have the opportunity to address the Applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the Applicant and Application Respondent questions during their presentations to clarify things.

A discussion of courtroom protocol is available in the How Do I ? chapter of this website.

After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision''.

===After The Hearing===

It is usually the job of the Applicant's lawyer to turn whatever the judge or master has decided into a written order. If the Applicant doesn't have a lawyer, the lawyer for the Application Respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the "official" order of the court, the order is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and change depending on whether the application is for a interim order, a final order or an order changing a final order.

====Making an Application====

The Applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''twelve business days'' of the hearing.
*For applications to change a final order, within ''twenty-one business days'' of the hearing.

====Replying to an Application====

The Application Respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''fourteen business days'' of being served.

====Responding to a Reply====

The Applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application Records====

The Applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the Application Respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample Timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING.'''
|}

In this example, the Application Respondent's materials are due on Monday on the second week, one week after the date of service, and the Applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the Application Respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the Applicant serves the interim application materials and the date of the hearing: all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A Short Note about Courtesy===

The Supreme Court Family Rules allow an Applicant to simply set the hearing date without consulting the Application Respondent. Although this gives the Applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the Application Respondent, you can expect the Application Respondent to show up on the hearing date and ask the court for an adjournment a delay of your application.

If the Application Respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the Application Respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or his or her lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications.

If you can make the call, try to reach an agreement on:

#the date when you'll have the application materials to the Application Respondent;
#the date when the Application Respondent will get his or her reply materials to you; and,
#the hearing date.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''Applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''Respondent'', the person against whom the application has been brought. The Respondent is not required to file anything in reply to the application.

Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits. As a result, the exchange of Affidavits is not a mandatory part of the process.

The principle Rules of Court which relate to these documents and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for registries designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation program

A ''registry'' means a particular courthouse of the Provincial Court.

===When an Application can be Brought===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Reply to the Applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for Parenting After Separation program and whether it is also a family justice registry.

====Family Justice Registries====

Rule 5 of the Provincial Court Family Rules applies to those registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

#Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court;
#Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute;
#Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor; and,
#Rule 5(8) sets out some exceptions to the rule that may allow a party to ask a judge for to be exempted from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where the court proceeding involves orders about the care of children or child support. Rule 21 sets out yet more hoops to jump through, however the Parenting After Separation program is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

#Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program;
#Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance;
#Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years; and,
#Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, for most parents, once Rules 5 and 21 have been complied with they can follow the standard rules for bringing on interim applications, described below.

====Family Case Conferences====

Family Case Conferences are similar in many ways to the Judicial Case Conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

===Making an Application===

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard court form, Form 16, that comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with his or her copy at least seven dates before the date the application is set to be heard.

The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

===Defending an Application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response.

===The Hearing===

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) says that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.) Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to one side of the centre podium.

The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. Stand whenever the judge speaks to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in affidavit format. Affidavits can be used, but for some reason this is rarely the case. Most judges would prefer to have an affidavit, and if you can prepare one, you should. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them, or may make an affidavit in reply to the Applicant's affidavit.

Once the Applicant's case is done, the Respondent may present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses.

A discussion of courtroom protocol is available in the How Do I ? chapter.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The Respondent will be able to reply to the Applicant's argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply.

Once everyone is done, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may reserve judgment until some later time.

===After the Hearing===

If the parties to the hearing were represented by lawyers, the Applicant's lawyer will usually draft an order based on the judge's judgment. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

==Common Interim Applications==

The following discussion reviews the basic facts that will usually need to be proven in support of the most common kinds of interim applications in family law matters. This is only a rough guide as the particular facts that are important will change from case to case.

STOPPED... must include new FLA tests

===Care of Children===

When making the first application about custody and access, or parenting arrangements and contact, important facts will usually include:

#the children's names, birthdates and ages;
#where the children go to school and what grade they're in;
#any important health or educational concerns;
#the occupation of each parent;
#each parent's usual work schedule;
#how the parents shared the parenting of the children while they were together;
#who was most responsible for arranging things like visits to the doctor and dentist;
#who was most responsible for looking after school issues, like parent-teacher meetings and making sure homework was done;
#how the parents have shared the parenting of the children since they separated;
#the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation; and,
#a description of any actual problems with a parent's capacity to care for the children.

If the application is to change an order or an agreement about the care of the children, important facts will include the facts which address the threshold legal test...

#what has changed since the order or agreement was made;
#was this change was known of or anticipated at the time of the order or agreement; and,
#how has this change has affected the best interests of the children.

...as well as other important facts such as:

#how has the order or agreement worked out;
#did the parents follow the terms of the order or agreement; and,
#has the order or agreement met the children's needs.

===Child Support===

The important facts that go into an application for child support are:

#the children's names, birthdates and ages;
#how the children's time is divided between the parents;
#whether some or all of the children are stepchildren to the person who is to pay child support;
#whether some or all of the children are receiving child support from another parent;
#the nature of each parent's employment; and,
#each parent's employment income.

Applications about child support typically require that each parent cough up certain documents to establish his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or chequestubs from their employment. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income;
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or new spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Spousal Support===

When making the first application for spousal support, the important facts will include:

#the date the parties began to live together and the date they married;
#the date of separation;
#the parties' ages, including the proposed recipient's age at the date of separation;
#each party's present health;
#any factors limiting a party's ability to obtain employment;
#the parties' present employment circumstances;
#the parties' employment history during marriage, including any periods of unemployment;
#each party's present income and the sources of that income;
#a description of the each party's living expenses after separation;
#any career sacrifices made during the relationship;
#the parties' education and training history, prior to and during the marriage;
#a description of any education and training taken after separation, especially any education geared to finding employment;
#the ages and school status of the children at the date of separation; and,
#the arrangements that have been made for the care and control of any children.

If the application is to change an order or an agreement about spousal support, important facts will include the facts necessary to address the threshold legal test...

#what has changed since the order or agreement was made; and,
#was this change was known of or anticipated at the time of the order or agreement.

...as well as other important facts such as:

#each party's income at the time of the application;
#each party's income at the time of the most recent order or agreement;
#the steps the recipient has taken to become financially self-sufficient;
#education or training taken by the recipient since the order or agreement was made;
#any employment taken by the recipient since the order or agreement was made;
#any changes in the employment circumstances of the payor;
#whether the recipient has remarried or is in a new common-law relationship; and,
#whether the payor has acquired new family support obligations since the order or agreement was made.

All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Restraining Orders===

The court can make a number of orders where someone is in need of protection, depending on what the person is in need of protection from. More information about these orders can be found in the chapter Other Family Law Issues > Family Violence.

The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Justice Education Society about interim applications featuring a great series of instructional videos.

{{JP Boyd on Family Law Navbox|type=chapters}}

Interim Applications in Family Matters

2013-02-27T04:48:40Z

96.48.61.138: /* The Provincial Family Court */

{{JP Boyd on Family Law TOC}}

Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short term orders like these, you must make an ''interim application'' in court.

This page provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts which should be proved for a variety of common interim applications.

'''DRAFT UNEDITED'''

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''M.(D.R.) v. M.(R.B.)'', a 2006 case of the Supreme Court, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The Subjects of Interim Applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:

*Where will the children live most of the time?
*What time will each parent have with the children?
*Should child support be paid?
*Should spousal support be paid, and, if so, how much should be paid?
*Should only one spouse have the right to live in the family home?
*Should the property be frozen?
*Is a protection order necessary?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:

#not disposing of property;
#not racking up debt;
#not talking to the children about the issues in the court proceeding; or,
#not going to a particular place.

Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:

#not communicating with the family member;
#not going to a place where the family member goes to school or works;
#not possessing weapons; or,
#not stalking the family members.

Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to:

#set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents;
#force someone to submit to a medical or psychiatric examination;
#authorize the preparation of a custody and access report; or,
#fix dates for hearings like Trial Management Conferences and Settlement Conferences.

Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or finishes trial.

===Making Interim Applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending an court proceeding and works more or less like this:

#the person making the application, the ''Applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''Respondent'' or the ''Application Respondent'';
#the Application Respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the Applicant;
#the Applicant replies to the Application Respondent's reply; and,
#on the date of the hearing, the Applicant argues why the order sought should be made, the Application Respondent argues why the order sought shouldn't be made, and the judge or master hearing the application makes a decision one way or the other (or, often, a bit of both ways).

The requirements, deadlines and court forms for each of these steps are governed by the Rules of Court. The rules also set out how the application is set for hearing and heard and the nature of the court's the authority to decide the issues before it.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, or to freeze the family property, for example.

The main Rules of Court about the application process and the forms used in this process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: Judicial Case Conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

Sample court forms and blank court forms for download are available in ______ .

===When to Make an Application===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. Applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately, as might be the case if a parent is threatening to leave the country with the children or torch the family home.

Rule 7-1(3) sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

#when an application is being made for an order restraining either or both parties from disposing of family assets;
#when the order will be made with the agreement of both parties; or,
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC.

Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC.

JCCs are discussed in more detail in the chapter _____ .

===Making an Application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the ''Application Respondent'', you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2, usually by sending them to the Application Respondent's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the Application Respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the Application Respondent. The timelines for interim applications are discussed below in more detail.

====Notice of Application====

The Notice of Application describes:

#the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for);
#the facts supporting the application;
#the legal grounds on which the application is made;
#the affidavits or other evidence on which the Applicant relies on in support of the relief sought;
#the amount of time the Applicant thinks it will take for the application to be heard; and,
#the date picked by the Applicant for the hearing of the application.

The form which must be used is Form F31, set out in the Supreme Court Family Rules. The cost to file an application is $80.00.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Replying to an Application===

You must reply to an interim application if you object to any of the orders the Applicant is asking for. If you agree with all of the orders sought by the Applicant, you don't need to do anything.

To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the Applicant by ordinary service, usually by sending them to the Applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Application Response and supporting affidavits must be filed in court and served on the Applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

====Application Response====

An Application Response describes:

#the orders sought by the Applicant which the Application Respondent agrees to;
#the orders that the Application Respondent opposes;
#the orders to which the Application Respondent neither opposes nor consents (this is called ''taking no position'' on an order);
#the facts supporting the Application Respondent's position;
#athe legal grounds on which any opposed orders are opposed;
#the affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and,
#the amount of time the Applicant Respondent thinks it will take for the application to be heard.

The form which must be used is Form F32, set out in the Supreme Court Family Rules. There is no fee to file an Application Response.

The Respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Application. This is called a ''cross-application''. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Responding to the Reply===

The Applicant may prepare an affidavit responding to the affidavits provided by the Application Respondent. This new affidavit must be limited to answering new issues raised by the Application Respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the Applicant's first Affidavit.

The Applicant must file any responding affidavits in court and serve them on the Application Respondent by 4:00pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the Application Respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the Application Respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the Application Respondent to file and make arguments based on a new affidavit.

===A Short Note about Time Estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the Trial Coordinator at the court registry, and a hearing date may not be available for several weeks. Applications that will take less than two hours are heard on a day picked by the Applicant, although it's always best if the Applicant picks the date in consultation with the Application Respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be thirty. The court clerk will generally sort the applications in order of the time estimates, so that a five minute application will be heard fairly quickly while a ninety minute application might not be heard until much later in the day.

===Application Records===

The Applicant must prepare the ''Application Record'' for the application. When both parties have an application scheduled to be heard on the same day, the parties must cooperate and prepare a joint Application Record.

The Applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the Applicant will be asking the court to hear. The Applicant must serve a copy of the index of the Record on the Application Respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your Record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45pm, and I suggest you give yourself plenty of time to file your Record and get to the registry early.

An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including a passing a couple of hex bolts through the left-hand margin.

The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record;
#the Notice of Application (Tab 1);
#the Response to Application (Tab 2); and,
#the Affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases.

Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#the court file number, court registry and the names of the parties, they way these appear at the top of all other court documents;
#the title of the document being filed ("Application Record");
#the claimant's address for delivery, telephone number and fax number;
#the respondent's address for delivery, telephone number and fax number; and,
#the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.

A sample cover page is available in _______.

===The Hearing===

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will walk up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. (The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order.) The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application."

The Applicant will address the judge first, and present his or her case, explaining:

#what orders the Applicant is asking the judge to make;
#why the judge can make the orders the Applicant is asking for; and,
#the facts which motivated the application.

The Application Respondent will then present his or her side of the case and explain why the judge shouldn't make the orders the Applicant is asking for. The Applicant will then have a chance to briefly answer the Application Respondent's argument. The Application Respondent may have the opportunity to address the Applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the Applicant and Application Respondent questions during their presentations to clarify things.

A discussion of courtroom protocol is available in the How Do I ? chapter of this website.

After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision''.

===After The Hearing===

It is usually the job of the Applicant's lawyer to turn whatever the judge or master has decided into a written order. If the Applicant doesn't have a lawyer, the lawyer for the Application Respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the "official" order of the court, the order is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and change depending on whether the application is for a interim order, a final order or an order changing a final order.

====Making an Application====

The Applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''twelve business days'' of the hearing.
*For applications to change a final order, within ''twenty-one business days'' of the hearing.

====Replying to an Application====

The Application Respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''fourteen business days'' of being served.

====Responding to a Reply====

The Applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application Records====

The Applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the Application Respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample Timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING.'''
|}

In this example, the Application Respondent's materials are due on Monday on the second week, one week after the date of service, and the Applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the Application Respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the Applicant serves the interim application materials and the date of the hearing: all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A Short Note about Courtesy===

The Supreme Court Family Rules allow an Applicant to simply set the hearing date without consulting the Application Respondent. Although this gives the Applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the Application Respondent, you can expect the Application Respondent to show up on the hearing date and ask the court for an adjournment a delay of your application.

If the Application Respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the Application Respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or his or her lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications.

If you can make the call, try to reach an agreement on:

#the date when you'll have the application materials to the Application Respondent;
#the date when the Application Respondent will get his or her reply materials to you; and,
#the hearing date.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''Applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''Respondent'', the person against whom the application has been brought. The Respondent is not required to file anything in reply to the application.

Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits. As a result, the exchange of Affidavits is not a mandatory part of the process.

The principle Rules of Court which relate to these documents and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for registries designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation program

A ''registry'' means a particular courthouse of the Provincial Court.

===When an Application can be Brought===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Reply to the Applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for Parenting After Separation program and whether it is also a family justice registry.

====Family Justice Registries====

Rule 5 of the Provincial Court Family Rules applies to those registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

#Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court;
#Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute;
#Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor; and,
#Rule 5(8) sets out some exceptions to the rule that may allow a party to ask a judge for to be exempted from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where the court proceeding involves orders about the care of children or child support. Rule 21 sets out yet more hoops to jump through, however the Parenting After Separation program is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

#Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program;
#Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance;
#Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years; and,
#Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, for most parents, once Rules 5 and 21 have been complied with they can follow the standard rules for bringing on interim applications, described below.

====Family Case Conferences====

Family Case Conferences are similar in many ways to the Judicial Case Conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

===Making an Application===

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard court form, Form 16, that comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with his or her copy at least seven dates before the date the application is set to be heard.

The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

===Defending an Application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response.

===The Hearing===

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) says that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.) Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to one side of the centre podium.

The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. Stand whenever the judge speaks to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in affidavit format. Affidavits can be used, but for some reason this is rarely the case. Most judges would prefer to have an affidavit, and if you can prepare one, you should. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them, or may make an affidavit in reply to the Applicant's affidavit.

Once the Applicant's case is done, the Respondent may present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses.

A discussion of courtroom protocol is available in the How Do I ? chapter.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The Respondent will be able to reply to the Applicant's argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply.

Once everyone is done, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may reserve judgment until some later time.

===After the Hearing===

If the parties to the hearing were represented by lawyers, the Applicant's lawyer will usually draft an order based on the judge's judgment. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

==Common Interim Applications==

This sections reviews the basic facts that have to be proved in support of the most common kinds of interim applications in family law matters. This is only a rough guide as the sort of facts that are important will change from case to case.

===Care of Children===

When making the first application about custody, guardianship and access, important facts will include:

#the children's names, birthdates and ages;
#where the children go to school and what grade they're in;
#any important health and education concerns;
#the occupation of each parent;
#each parent's usual work schedule;
#how the parents shared the parenting of the children while they were together;
#who was most responsible for arranging things like visits to the doctor and dentist;
#who was most responsible for looking after school issues, like parent-teacher meetings and making sure homework was done;
#how the parents have shared the parenting of the children since they separated;
#the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation; and,
#a description of any actual problems with a parent's capacity to care for the children.

If the application is to change an order or an agreement about the care of the children, important facts will include the facts which address the threshold legal test...

#what has changed since the order or agreement was made;
#was this change was known of or anticipated at the time of the order or agreement; and,
#how has this change has affected the best interests of the children.

...as well as other important facts such as:

#how has the order or agreement worked out;
#did the parents follow the terms of the order or agreement; and,
#has the order or agreement met the children's needs.

===Child Support===

The important facts that go into an application for child support are:

#the children's names, birthdates and ages;
#how the children's time is divided between the parents;
#whether some or all of the children are step-children to the parent who is to pay child support;
#whether some or all of the children are receiving child support from another parent;
#the nature of each parent's employment; and,
#each parent's employment income.

Applications about child support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Spousal Support===

When making the first application for spousal support, the important facts will include:

#the date the party's began to live together and the date they married;
#the date of separation;
#the parties' ages, including the recipient's age at the date of separation;
#each party's present health;
#any factors limiting a party's ability to obtain employment;
#the parties' present employment circumstances;
#the parties' employment history during marriage, including any periods of unemployment;
#each party's present income and the sources of that income;
#a description of the each party's living expenses after separation;
#any career sacrifices made during the relationship;
#the parties' education and training history, prior to and during the marriage;
#a description of any education and training taken after separation, especially any education geared to finding employment;
#the ages and school status of the children at the date of separation; and,
#the arrangements that have been made for the care and control of any children.

If the application is to change an order or an agreement about spousal support, important facts will include the facts necessary to address the threshold legal test...

#what has changed since the order or agreement was made; and,
#was this change was known of or anticipated at the time of the order or agreement.

...as well as other important facts such as:

#each party's income at the time of the application;
#each party's income at the time of the most recent order or agreement;
#the steps the recipient has taken to become financially self-sufficient;
#education or training taken by the recipient since the order or agreement was made;
#any employment taken by the recipient since the order or agreement was made;
#any changes in the employment circumstances of the payor;
#whether the recipient has remarried or is in a new common-law relationship; and,
#whether the payor has acquired new family support obligations since the order or agreement was made.

All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Restraining Orders===

The court can make a number of orders where someone is in need of protection, depending on what the person is in need of protection from. More information about these orders can be found in the chapter Other Family Law Issues > Family Violence.

The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Justice Education Society about interim applications featuring a great series of instructional videos.

{{JP Boyd on Family Law Navbox|type=chapters}}

Interim Applications in Family Matters

2013-02-26T05:10:00Z

96.48.61.138: /* The Provincial Family Court */

{{JP Boyd on Family Law TOC}}

Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short term orders like these, you must make an ''interim application'' in court.

This page provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts which should be proved for a variety of common interim applications.

'''DRAFT UNEDITED'''

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''M.(D.R.) v. M.(R.B.)'', a 2006 case of the Supreme Court, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The Subjects of Interim Applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:

*Where will the children live most of the time?
*What time will each parent have with the children?
*Should child support be paid?
*Should spousal support be paid, and, if so, how much should be paid?
*Should only one spouse have the right to live in the family home?
*Should the property be frozen?
*Is a protection order necessary?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:

#not disposing of property;
#not racking up debt;
#not talking to the children about the issues in the court proceeding; or,
#not going to a particular place.

Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:

#not communicating with the family member;
#not going to a place where the family member goes to school or works;
#not possessing weapons; or,
#not stalking the family members.

Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to:

#set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents;
#force someone to submit to a medical or psychiatric examination;
#authorize the preparation of a custody and access report; or,
#fix dates for hearings like Trial Management Conferences and Settlement Conferences.

Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or finishes trial.

===Making Interim Applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending an court proceeding and works more or less like this:

#the person making the application, the ''Applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''Respondent'' or the ''Application Respondent'';
#the Application Respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the Applicant;
#the Applicant replies to the Application Respondent's reply; and,
#on the date of the hearing, the Applicant argues why the order sought should be made, the Application Respondent argues why the order sought shouldn't be made, and the judge or master hearing the application makes a decision one way or the other (or, often, a bit of both ways).

The requirements, deadlines and court forms for each of these steps are governed by the Rules of Court. The rules also set out how the application is set for hearing and heard and the nature of the court's the authority to decide the issues before it.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, or to freeze the family property, for example.

The main Rules of Court about the application process and the forms used in this process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: Judicial Case Conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

Sample court forms and blank court forms for download are available in ______ .

===When to Make an Application===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. Applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately, as might be the case if a parent is threatening to leave the country with the children or torch the family home.

Rule 7-1(3) sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

#when an application is being made for an order restraining either or both parties from disposing of family assets;
#when the order will be made with the agreement of both parties; or,
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC.

Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC.

JCCs are discussed in more detail in the chapter _____ .

===Making an Application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the ''Application Respondent'', you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2, usually by sending them to the Application Respondent's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the Application Respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the Application Respondent. The timelines for interim applications are discussed below in more detail.

====Notice of Application====

The Notice of Application describes:

#the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for);
#the facts supporting the application;
#the legal grounds on which the application is made;
#the affidavits or other evidence on which the Applicant relies on in support of the relief sought;
#the amount of time the Applicant thinks it will take for the application to be heard; and,
#the date picked by the Applicant for the hearing of the application.

The form which must be used is Form F31, set out in the Supreme Court Family Rules. The cost to file an application is $80.00.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Replying to an Application===

You must reply to an interim application if you object to any of the orders the Applicant is asking for. If you agree with all of the orders sought by the Applicant, you don't need to do anything.

To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the Applicant by ordinary service, usually by sending them to the Applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Application Response and supporting affidavits must be filed in court and served on the Applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

====Application Response====

An Application Response describes:

#the orders sought by the Applicant which the Application Respondent agrees to;
#the orders that the Application Respondent opposes;
#the orders to which the Application Respondent neither opposes nor consents (this is called ''taking no position'' on an order);
#the facts supporting the Application Respondent's position;
#athe legal grounds on which any opposed orders are opposed;
#the affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and,
#the amount of time the Applicant Respondent thinks it will take for the application to be heard.

The form which must be used is Form F32, set out in the Supreme Court Family Rules. There is no fee to file an Application Response.

The Respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Application. This is called a ''cross-application''. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Responding to the Reply===

The Applicant may prepare an affidavit responding to the affidavits provided by the Application Respondent. This new affidavit must be limited to answering new issues raised by the Application Respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the Applicant's first Affidavit.

The Applicant must file any responding affidavits in court and serve them on the Application Respondent by 4:00pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the Application Respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the Application Respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the Application Respondent to file and make arguments based on a new affidavit.

===A Short Note about Time Estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the Trial Coordinator at the court registry, and a hearing date may not be available for several weeks. Applications that will take less than two hours are heard on a day picked by the Applicant, although it's always best if the Applicant picks the date in consultation with the Application Respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be thirty. The court clerk will generally sort the applications in order of the time estimates, so that a five minute application will be heard fairly quickly while a ninety minute application might not be heard until much later in the day.

===Application Records===

The Applicant must prepare the ''Application Record'' for the application. When both parties have an application scheduled to be heard on the same day, the parties must cooperate and prepare a joint Application Record.

The Applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the Applicant will be asking the court to hear. The Applicant must serve a copy of the index of the Record on the Application Respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your Record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45pm, and I suggest you give yourself plenty of time to file your Record and get to the registry early.

An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including a passing a couple of hex bolts through the left-hand margin.

The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record;
#the Notice of Application (Tab 1);
#the Response to Application (Tab 2); and,
#the Affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases.

Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#the court file number, court registry and the names of the parties, they way these appear at the top of all other court documents;
#the title of the document being filed ("Application Record");
#the claimant's address for delivery, telephone number and fax number;
#the respondent's address for delivery, telephone number and fax number; and,
#the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.

A sample cover page is available in _______.

===The Hearing===

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will walk up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. (The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order.) The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application."

The Applicant will address the judge first, and present his or her case, explaining:

#what orders the Applicant is asking the judge to make;
#why the judge can make the orders the Applicant is asking for; and,
#the facts which motivated the application.

The Application Respondent will then present his or her side of the case and explain why the judge shouldn't make the orders the Applicant is asking for. The Applicant will then have a chance to briefly answer the Application Respondent's argument. The Application Respondent may have the opportunity to address the Applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the Applicant and Application Respondent questions during their presentations to clarify things.

A discussion of courtroom protocol is available in the How Do I ? chapter of this website.

After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision''.

===After The Hearing===

It is usually the job of the Applicant's lawyer to turn whatever the judge or master has decided into a written order. If the Applicant doesn't have a lawyer, the lawyer for the Application Respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the "official" order of the court, the order is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and change depending on whether the application is for a interim order, a final order or an order changing a final order.

====Making an Application====

The Applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''twelve business days'' of the hearing.
*For applications to change a final order, within ''twenty-one business days'' of the hearing.

====Replying to an Application====

The Application Respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''fourteen business days'' of being served.

====Responding to a Reply====

The Applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application Records====

The Applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the Application Respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample Timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING.'''
|}

In this example, the Application Respondent's materials are due on Monday on the second week, one week after the date of service, and the Applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the Application Respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the Applicant serves the interim application materials and the date of the hearing: all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A Short Note about Courtesy===

The Supreme Court Family Rules allow an Applicant to simply set the hearing date without consulting the Application Respondent. Although this gives the Applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the Application Respondent, you can expect the Application Respondent to show up on the hearing date and ask the court for an adjournment a delay of your application.

If the Application Respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the Application Respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or his or her lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications.

If you can make the call, try to reach an agreement on:

#the date when you'll have the application materials to the Application Respondent;
#the date when the Application Respondent will get his or her reply materials to you; and,
#the hearing date.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''Applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''Respondent'', the person against whom the application has been brought. The Respondent is not required to file anything in reply to the application.

Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits. As a result, the exchange of Affidavits is not a mandatory part of the process.

The principle Rules of Court which relate to these documents and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for registries designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation programs

A ''registry'' means a particular courthouse of the Provincial Court.

===When an Application can be Brought===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Reply to the Applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for Parenting After Separation program and whether it is also a family justice registry.

====Family Justice Registries====

Rule 5 of the Provincial Court Family Rules applies to those registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

#Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court;
#Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute;
#Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor; and,
#Rule 5(8) sets out some exceptions to the rule that may allows a party to ask a judge for to be exempted from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where the court proceeding involves orders about the care of children or child support. Rule 21 sets out yet more hoops to jump through, however the Parenting After Separation program is

STOPPED.

*Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
*Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
*Rules 21(4) and (5) set out some exceptions to the rule, which allow a party to escape the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
*Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, such as parents who have been separated for many years being required to take the Parenting After Separation Program and other parents being required to take the progam three or four times. Once Rules 5 and 21 have been complied with, however, the parties to an action can follow the standard rules for bringing on an interim application, set out below.

Contact information for the Parenting After Separation Program is provided in the chapter Children > Parenting After Separation.

====Family Case Conferences====

Family Case Conferences are similar in many ways to the Judicial Case Conferences common in the Supreme Court. The big difference between the two is that it is not mandatory that an FCC be held before an interim application can be brought. You need not wait for your FCC before you bring on an interim application.

===Making an Application===

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard form, Form 16, which comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with his or her copy at least seven dates before the date the application is set to be heard.

The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain particular days set aside for hearing interim applications in family law cases.

===Defending an Application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the Rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form used for responding to Applications to Obtain an Order and Applications to Change an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response.

===The Hearing===

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) says that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.) Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and take a seat to one side of the centre podium.

The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. Stand whenever the judge is speaking to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in Affidavit format. Affidavits can be used, but for some reason this is rarely the case. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them.

Once the Applicant's case is done, the Respondent can present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses.

A discussion of courtroom protocol is available in the How Do I ? section of this website.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why he or she should have the order sought. The Respondent will be able to reply to this argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply.

Once argument has finished, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may "reserve" judgment until some later time.

===After the Hearing===

If the parties to the hearing were represented by lawyers, the Applicant's lawyer will usually draft an order based on the judge's judgment. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

F. Downloads
The link below will open a sample Notice of Motion in a new window.

In the sample Notice of Motion, our fictitious applicant, Simon Chang, is looking for an interim order about custody for himself and access for the respondent, Suzie Schwartz. (For more information about these topics, see the section "Children.")

Form 16: Notice of Motion
This sample document is just that: a sample. While it represents a more or less accurate picture of how Simon Chang might fill out this form, it may not be applicable to your situation. Use it as a reference only together with the official court form.

Areas where you must supply information are indicated in black script.

Back to the top of this chapter.

==Common Interim Applications==

This sections reviews the basic facts that have to be proved in support of the most common kinds of interim applications in family law matters. This is only a rough guide as the sort of facts that are important will change from case to case.

===Care of Children===

When making the first application about custody, guardianship and access, important facts will include:

#the children's names, birthdates and ages;
#where the children go to school and what grade they're in;
#any important health and education concerns;
#the occupation of each parent;
#each parent's usual work schedule;
#how the parents shared the parenting of the children while they were together;
#who was most responsible for arranging things like visits to the doctor and dentist;
#who was most responsible for looking after school issues, like parent-teacher meetings and making sure homework was done;
#how the parents have shared the parenting of the children since they separated;
#the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation; and,
#a description of any actual problems with a parent's capacity to care for the children.

If the application is to change an order or an agreement about the care of the children, important facts will include the facts which address the threshold legal test...

#what has changed since the order or agreement was made;
#was this change was known of or anticipated at the time of the order or agreement; and,
#how has this change has affected the best interests of the children.

...as well as other important facts such as:

#how has the order or agreement worked out;
#did the parents follow the terms of the order or agreement; and,
#has the order or agreement met the children's needs.

===Child Support===

The important facts that go into an application for child support are:

#the children's names, birthdates and ages;
#how the children's time is divided between the parents;
#whether some or all of the children are step-children to the parent who is to pay child support;
#whether some or all of the children are receiving child support from another parent;
#the nature of each parent's employment; and,
#each parent's employment income.

Applications about child support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Spousal Support===

When making the first application for spousal support, the important facts will include:

#the date the party's began to live together and the date they married;
#the date of separation;
#the parties' ages, including the recipient's age at the date of separation;
#each party's present health;
#any factors limiting a party's ability to obtain employment;
#the parties' present employment circumstances;
#the parties' employment history during marriage, including any periods of unemployment;
#each party's present income and the sources of that income;
#a description of the each party's living expenses after separation;
#any career sacrifices made during the relationship;
#the parties' education and training history, prior to and during the marriage;
#a description of any education and training taken after separation, especially any education geared to finding employment;
#the ages and school status of the children at the date of separation; and,
#the arrangements that have been made for the care and control of any children.

If the application is to change an order or an agreement about spousal support, important facts will include the facts necessary to address the threshold legal test...

#what has changed since the order or agreement was made; and,
#was this change was known of or anticipated at the time of the order or agreement.

...as well as other important facts such as:

#each party's income at the time of the application;
#each party's income at the time of the most recent order or agreement;
#the steps the recipient has taken to become financially self-sufficient;
#education or training taken by the recipient since the order or agreement was made;
#any employment taken by the recipient since the order or agreement was made;
#any changes in the employment circumstances of the payor;
#whether the recipient has remarried or is in a new common-law relationship; and,
#whether the payor has acquired new family support obligations since the order or agreement was made.

All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Restraining Orders===

The court can make a number of orders where someone is in need of protection, depending on what the person is in need of protection from. More information about these orders can be found in the chapter Other Family Law Issues > Family Violence.

The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Justice Education Society about interim applications featuring a great series of instructional videos.

{{JP Boyd on Family Law Navbox|type=chapters}}

Interim Applications in Family Matters

2013-02-26T04:29:40Z

96.48.61.138: /* Sample Timelines */

{{JP Boyd on Family Law TOC}}

Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short term orders like these, you must make an ''interim application'' in court.

This page provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts which should be proved for a variety of common interim applications.

'''DRAFT UNEDITED'''

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''M.(D.R.) v. M.(R.B.)'', a 2006 case of the Supreme Court, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The Subjects of Interim Applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:

*Where will the children live most of the time?
*What time will each parent have with the children?
*Should child support be paid?
*Should spousal support be paid, and, if so, how much should be paid?
*Should only one spouse have the right to live in the family home?
*Should the property be frozen?
*Is a protection order necessary?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:

#not disposing of property;
#not racking up debt;
#not talking to the children about the issues in the court proceeding; or,
#not going to a particular place.

Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:

#not communicating with the family member;
#not going to a place where the family member goes to school or works;
#not possessing weapons; or,
#not stalking the family members.

Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to:

#set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents;
#force someone to submit to a medical or psychiatric examination;
#authorize the preparation of a custody and access report; or,
#fix dates for hearings like Trial Management Conferences and Settlement Conferences.

Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or finishes trial.

===Making Interim Applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending an court proceeding and works more or less like this:

#the person making the application, the ''Applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''Respondent'' or the ''Application Respondent'';
#the Application Respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the Applicant;
#the Applicant replies to the Application Respondent's reply; and,
#on the date of the hearing, the Applicant argues why the order sought should be made, the Application Respondent argues why the order sought shouldn't be made, and the judge or master hearing the application makes a decision one way or the other (or, often, a bit of both ways).

The requirements, deadlines and court forms for each of these steps are governed by the Rules of Court. The rules also set out how the application is set for hearing and heard and the nature of the court's the authority to decide the issues before it.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, or to freeze the family property, for example.

The main Rules of Court about the application process and the forms used in this process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: Judicial Case Conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

Sample court forms and blank court forms for download are available in ______ .

===When to Make an Application===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. Applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately, as might be the case if a parent is threatening to leave the country with the children or torch the family home.

Rule 7-1(3) sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

#when an application is being made for an order restraining either or both parties from disposing of family assets;
#when the order will be made with the agreement of both parties; or,
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC.

Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC.

JCCs are discussed in more detail in the chapter _____ .

===Making an Application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the ''Application Respondent'', you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2, usually by sending them to the Application Respondent's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the Application Respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the Application Respondent. The timelines for interim applications are discussed below in more detail.

====Notice of Application====

The Notice of Application describes:

#the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for);
#the facts supporting the application;
#the legal grounds on which the application is made;
#the affidavits or other evidence on which the Applicant relies on in support of the relief sought;
#the amount of time the Applicant thinks it will take for the application to be heard; and,
#the date picked by the Applicant for the hearing of the application.

The form which must be used is Form F31, set out in the Supreme Court Family Rules. The cost to file an application is $80.00.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Replying to an Application===

You must reply to an interim application if you object to any of the orders the Applicant is asking for. If you agree with all of the orders sought by the Applicant, you don't need to do anything.

To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the Applicant by ordinary service, usually by sending them to the Applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Application Response and supporting affidavits must be filed in court and served on the Applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

====Application Response====

An Application Response describes:

#the orders sought by the Applicant which the Application Respondent agrees to;
#the orders that the Application Respondent opposes;
#the orders to which the Application Respondent neither opposes nor consents (this is called ''taking no position'' on an order);
#the facts supporting the Application Respondent's position;
#athe legal grounds on which any opposed orders are opposed;
#the affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and,
#the amount of time the Applicant Respondent thinks it will take for the application to be heard.

The form which must be used is Form F32, set out in the Supreme Court Family Rules. There is no fee to file an Application Response.

The Respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Application. This is called a ''cross-application''. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====Supporting Affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the Supreme Court Family Rules.

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.

===Responding to the Reply===

The Applicant may prepare an affidavit responding to the affidavits provided by the Application Respondent. This new affidavit must be limited to answering new issues raised by the Application Respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the Applicant's first Affidavit.

The Applicant must file any responding affidavits in court and serve them on the Application Respondent by 4:00pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the Application Respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the Application Respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the Application Respondent to file and make arguments based on a new affidavit.

===A Short Note about Time Estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the Trial Coordinator at the court registry, and a hearing date may not be available for several weeks. Applications that will take less than two hours are heard on a day picked by the Applicant, although it's always best if the Applicant picks the date in consultation with the Application Respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be thirty. The court clerk will generally sort the applications in order of the time estimates, so that a five minute application will be heard fairly quickly while a ninety minute application might not be heard until much later in the day.

===Application Records===

The Applicant must prepare the ''Application Record'' for the application. When both parties have an application scheduled to be heard on the same day, the parties must cooperate and prepare a joint Application Record.

The Applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the Applicant will be asking the court to hear. The Applicant must serve a copy of the index of the Record on the Application Respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your Record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45pm, and I suggest you give yourself plenty of time to file your Record and get to the registry early.

An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including a passing a couple of hex bolts through the left-hand margin.

The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record;
#the Notice of Application (Tab 1);
#the Response to Application (Tab 2); and,
#the Affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases.

Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#the court file number, court registry and the names of the parties, they way these appear at the top of all other court documents;
#the title of the document being filed ("Application Record");
#the claimant's address for delivery, telephone number and fax number;
#the respondent's address for delivery, telephone number and fax number; and,
#the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.

A sample cover page is available in _______.

===The Hearing===

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will walk up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. (The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order.) The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application."

The Applicant will address the judge first, and present his or her case, explaining:

#what orders the Applicant is asking the judge to make;
#why the judge can make the orders the Applicant is asking for; and,
#the facts which motivated the application.

The Application Respondent will then present his or her side of the case and explain why the judge shouldn't make the orders the Applicant is asking for. The Applicant will then have a chance to briefly answer the Application Respondent's argument. The Application Respondent may have the opportunity to address the Applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the Applicant and Application Respondent questions during their presentations to clarify things.

A discussion of courtroom protocol is available in the How Do I ? chapter of this website.

After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision''.

===After The Hearing===

It is usually the job of the Applicant's lawyer to turn whatever the judge or master has decided into a written order. If the Applicant doesn't have a lawyer, the lawyer for the Application Respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the "official" order of the court, the order is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and change depending on whether the application is for a interim order, a final order or an order changing a final order.

====Making an Application====

The Applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''twelve business days'' of the hearing.
*For applications to change a final order, within ''twenty-one business days'' of the hearing.

====Replying to an Application====

The Application Respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''fourteen business days'' of being served.

====Responding to a Reply====

The Applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application Records====

The Applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the Application Respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample Timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING.'''
|}

In this example, the Application Respondent's materials are due on Monday on the second week, one week after the date of service, and the Applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the Application Respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the Applicant serves the interim application materials and the date of the hearing: all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the Application Respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A Short Note about Courtesy===

The Supreme Court Family Rules allow an Applicant to simply set the hearing date without consulting the Application Respondent. Although this gives the Applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the Application Respondent, you can expect the Application Respondent to show up on the hearing date and ask the court for an adjournment a delay of your application.

If the Application Respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the Application Respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or his or her lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications.

If you can make the call, try to reach an agreement on:

#the date when you'll have the application materials to the Application Respondent;
#the date when the Application Respondent will get his or her reply materials to you; and,
#the hearing date.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''Applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''Respondent'', the person against whom the application has been brought. The Respondent is not required to file anything in reply to the application.

Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits. As a result, the exchange of Affidavits is not a mandatory part of the process.

The principle Rules of Court which relate to these documents and the application process are:

*Rule 5: court procedures for registries designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation programs

===When an Application can be Brought===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Reply to the Applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a family justice registry.

STOPPED

====Family Justice Registries====

Rule 5 of the Provincial Court (Family) Rules applies to registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to an action are required to jump through a number of hoops before the parties first appear in court.

*Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can set the parties' first appearance in court.
*Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to a number of out-of-court settlement services.
*Rule 5(6) says that only after the parties have met with a family justice counsellor they may ask to appear in front of a judge, and even then they must file a request to go before a judge, in Form 6.
*Rule 5(8) sets out some exceptions to the rule, which allows a party, in the case of urgent circumstances, to ask a judge for an exemption to all or part of the rule.

Registries designated as family justice registries must also apply Rule 21 to parties where their action involves the care and control of children or child support. Rule 21 sets out yet more hoops for the litigants.

*Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
*Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
*Rules 21(4) and (5) set out some exceptions to the rule, which allow a party to escape the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
*Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, such as parents who have been separated for many years being required to take the Parenting After Separation Program and other parents being required to take the progam three or four times. Once Rules 5 and 21 have been complied with, however, the parties to an action can follow the standard rules for bringing on an interim application, set out below.

Contact information for the Parenting After Separation Program is provided in the chapter Children > Parenting After Separation.

====Family Case Conferences====

Family Case Conferences are similar in many ways to the Judicial Case Conferences common in the Supreme Court. The big difference between the two is that it is not mandatory that an FCC be held before an interim application can be brought. You need not wait for your FCC before you bring on an interim application.

===Making an Application===

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard form, Form 16, which comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with his or her copy at least seven dates before the date the application is set to be heard.

The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain particular days set aside for hearing interim applications in family law cases.

===Defending an Application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the Rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form used for responding to Applications to Obtain an Order and Applications to Change an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response.

===The Hearing===

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) says that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.) Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and take a seat to one side of the centre podium.

The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. Stand whenever the judge is speaking to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in Affidavit format. Affidavits can be used, but for some reason this is rarely the case. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them.

Once the Applicant's case is done, the Respondent can present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses.

A discussion of courtroom protocol is available in the How Do I ? section of this website.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why he or she should have the order sought. The Respondent will be able to reply to this argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply.

Once argument has finished, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may "reserve" judgment until some later time.

===After the Hearing===

If the parties to the hearing were represented by lawyers, the Applicant's lawyer will usually draft an order based on the judge's judgment. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

F. Downloads
The link below will open a sample Notice of Motion in a new window.

In the sample Notice of Motion, our fictitious applicant, Simon Chang, is looking for an interim order about custody for himself and access for the respondent, Suzie Schwartz. (For more information about these topics, see the section "Children.")

Form 16: Notice of Motion
This sample document is just that: a sample. While it represents a more or less accurate picture of how Simon Chang might fill out this form, it may not be applicable to your situation. Use it as a reference only together with the official court form.

Areas where you must supply information are indicated in black script.

Back to the top of this chapter.

==Common Interim Applications==

This sections reviews the basic facts that have to be proved in support of the most common kinds of interim applications in family law matters. This is only a rough guide as the sort of facts that are important will change from case to case.

===Care of Children===

When making the first application about custody, guardianship and access, important facts will include:

#the children's names, birthdates and ages;
#where the children go to school and what grade they're in;
#any important health and education concerns;
#the occupation of each parent;
#each parent's usual work schedule;
#how the parents shared the parenting of the children while they were together;
#who was most responsible for arranging things like visits to the doctor and dentist;
#who was most responsible for looking after school issues, like parent-teacher meetings and making sure homework was done;
#how the parents have shared the parenting of the children since they separated;
#the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation; and,
#a description of any actual problems with a parent's capacity to care for the children.

If the application is to change an order or an agreement about the care of the children, important facts will include the facts which address the threshold legal test...

#what has changed since the order or agreement was made;
#was this change was known of or anticipated at the time of the order or agreement; and,
#how has this change has affected the best interests of the children.

...as well as other important facts such as:

#how has the order or agreement worked out;
#did the parents follow the terms of the order or agreement; and,
#has the order or agreement met the children's needs.

===Child Support===

The important facts that go into an application for child support are:

#the children's names, birthdates and ages;
#how the children's time is divided between the parents;
#whether some or all of the children are step-children to the parent who is to pay child support;
#whether some or all of the children are receiving child support from another parent;
#the nature of each parent's employment; and,
#each parent's employment income.

Applications about child support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Spousal Support===

When making the first application for spousal support, the important facts will include:

#the date the party's began to live together and the date they married;
#the date of separation;
#the parties' ages, including the recipient's age at the date of separation;
#each party's present health;
#any factors limiting a party's ability to obtain employment;
#the parties' present employment circumstances;
#the parties' employment history during marriage, including any periods of unemployment;
#each party's present income and the sources of that income;
#a description of the each party's living expenses after separation;
#any career sacrifices made during the relationship;
#the parties' education and training history, prior to and during the marriage;
#a description of any education and training taken after separation, especially any education geared to finding employment;
#the ages and school status of the children at the date of separation; and,
#the arrangements that have been made for the care and control of any children.

If the application is to change an order or an agreement about spousal support, important facts will include the facts necessary to address the threshold legal test...

#what has changed since the order or agreement was made; and,
#was this change was known of or anticipated at the time of the order or agreement.

...as well as other important facts such as:

#each party's income at the time of the application;
#each party's income at the time of the most recent order or agreement;
#the steps the recipient has taken to become financially self-sufficient;
#education or training taken by the recipient since the order or agreement was made;
#any employment taken by the recipient since the order or agreement was made;
#any changes in the employment circumstances of the payor;
#whether the recipient has remarried or is in a new common-law relationship; and,
#whether the payor has acquired new family support obligations since the order or agreement was made.

All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

#the last three years of personal income tax returns;
#all notices of assessment or reassessment received in relation to the last three tax years; and,
#a recent paystub or a letter from an employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

#statements of professional or business income; a
#statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses; and,
#balance sheets, if available.

People who are self-employed by a corporation will also have to produce:

#corportate financial statements for the three most recent fiscal years;
#corporate tax returns for the three most recent fiscal years; and,
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses.

===Restraining Orders===

The court can make a number of orders where someone is in need of protection, depending on what the person is in need of protection from. More information about these orders can be found in the chapter Other Family Law Issues > Family Violence.

The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets.

==Further Reading in this Chapter==

Return to the first page in this chapter.

* other chapters

==Page Resources and Links==

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

===Legislation===

*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court

===Links===

* bulleted list of linked external websites referred to in page
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Justice Education Society about interim applications featuring a great series of instructional videos.

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