Clicklaw Wikibooks - User contributions [en]

Enforcing Orders in Family Matters

2019-06-14T21:18:53Z

Shannon Aldinger: /* The Hague Convention */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

There are also remedies if the opposite situation arises - namely that a party fails to exercise parenting time or contact. In those circumstances the other party can apply for an order under section 63 of the Family Law Act for the following types of orders:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 11, 2019, the Hague Convention applies between Canada and the following contracting states:

:Albania, Andorra, Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Former Yugoslav Republic of Macedonia, Malta, Mauritius, Mexico, Republic of Moldova, Monaco, Morocco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, San Marino, Serbia & Montenegro, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 11, 2019, the following contracting states do not have a reciprocating arrangement with Canada:

:Armenia, Bolivia, Gabon, Guatemala, Guinea, Iraq, Jamaica, Kazakhstan, Lesotho, Nicaragua, Pakistan, Republic of Korea, Republic of the Philippines, Russian Federation, Seychelles, Thailand, Tunisia and Republic of Zambia.

Countries not listed above have elected not to be bound by the Convention.

To see if these lists have since been updated, check out: [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/fr_hague].

For more general information and the current standing of participating nations, check out: the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing other types of orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T21:17:27Z

Shannon Aldinger: /* The Hague Convention */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

There are also remedies if the opposite situation arises - namely that a party fails to exercise parenting time or contact. In those circumstances the other party can apply for an order under section 63 of the Family Law Act for the following types of orders:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2019, the Hague Convention applies between Canada and the following contracting states:

:Albania, Andorra, Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Former Yugoslav Republic of Macedonia, Malta, Mauritius, Mexico, Republic of Moldova, Monaco, Morocco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, San Marino, Serbia & Montenegro, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2019, the following contracting states do not have a reciprocating arrangement with Canada:

:Armenia, Bolivia, Gabon, Guatemala, Guinea, Iraq, Jamaica, Kazakhstan, Lesotho, Nicaragua, Pakistan, Republic of Korea, Republic of the Philippines, Russian Federation, Seychelles, Thailand, Tunisia and Republic of Zambia.

Countries not listed above have elected not to be bound by the Convention.

To see if these lists have since been updated, check out: [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/fr_hague].

For more general information and the current standing of participating nations, check out: the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing other types of orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T21:02:05Z

Shannon Aldinger: /* The Hague Convention */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

There are also remedies if the opposite situation arises - namely that a party fails to exercise parenting time or contact. In those circumstances the other party can apply for an order under section 63 of the Family Law Act for the following types of orders:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention.

To see if these lists have since been updated, see: [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/fr_hague].

For more information and the current standing of participating nations, check out: the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing other types of orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-14T01:48:54Z

Shannon Aldinger: /* Resolving a court proceeding without a trial is still possible */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.

The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*The court orders that a party is exempt because in the court’s opinion it is impracticable or materially unfair to require the party to attend.
The [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See [http://canlii.ca/t/53h1z Rule 16-1] of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?resultIndex=1#Appendix_B___Costs__1266142 Appendix B –Costs] of the Supreme Court Family Rules. The categories you can claim costs for are set out in [https://wiki.clicklaw.bc.ca/index.php?title=Form_F71_Bill_of_Costs Form 17 Bill of Costs]
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [https://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and Expenses].

===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under [http://canlii.ca/t/53h1z Rule 11-1] of the Supreme Court Family Rules has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The...[party(ies)]..., ...[name(s) of party(ies)]..., reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."
An offer to settle cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
For more information on making an offer to settle see the Legal Services Society guide [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]

==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under [http://canlii.ca/t/53lfk Rule 11] to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion. For further information see the section Family Case Conferences in [[Case Conferences in a Family Matter | Case Conferences]] and for a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[http://canlii.ca/t/52325 Notice to Mediate (Family) Regulation]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]
* Legal Services Society Family Law in BC website:
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/judicial-case-conferences-supreme-court Judicial case conference in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/legal-help/if-you-have-go-court/judicial-case-conferences-supreme-court/deal#0 Deal with a judicial case conference]
** [http://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making mediation happen in a family law case in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and expenses]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court Family case conference]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court/checklist-family-case Checklist for family case conference]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

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

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:42:47Z

Shannon Aldinger: /* Family Law Act orders and foreign orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

There are also remedies if the opposite situation arises - namely that a party fails to exercise parenting time or contact. In those circumstances the other party can apply for an order under section 63 of the Family Law Act for the following types of orders:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing other types of orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

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

[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:30:59Z

Shannon Aldinger: /* Family Law Act orders and foreign orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

There are also remedies if the opposite situation arises - namely that a party fails to exercise parenting time or contact. In those circumstances the other party can apply for an order under section 63 of the Family Law Act for the following types of orders:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing other types of orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:28:12Z

Shannon Aldinger: /* Family Law Act orders and foreign orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

There are also remedies to address when the opposite situation arises - namely that a party fails to exercise parenting time or contact. In those circumstances the other party can apply for an order under section 63 of the Family Law Act for an order:
(a) requiring the parties to participate in family dispute resolution;
(b) requiring the party to attend counseling or another specified service or program;
(c) requiring that the transfer of the child from one party to another be supervised;
(d) requiring that the party reimburse the expenses incurred by the other party due to the non-compliance; and
(e) if the court is satisfied that there may be further non-compliance, then an order to post security or to report to the court or to a person named by the court in a manner specified by the court.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing other types of orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:15:00Z

Shannon Aldinger: /* Enforcing Other Types of Orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing other types of orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:14:32Z

Shannon Aldinger: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing Other Types of Orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 13, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:13:53Z

Shannon Aldinger: /* Contempt of Court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing Other Types of Orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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

[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:11:45Z

Shannon Aldinger: /* Collecting in the Supreme Court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing Other Types of Orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of Court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:04:14Z

Shannon Aldinger: /* Contempt of court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court. For example, you can only force the sale of land through the Supreme Court. It also has more comprehensive disclosure procedures and a rule specifically addressing contempt of court.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing Other Types of Orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of Court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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

[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-14T01:03:46Z

Shannon Aldinger: /* Contempt of court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court. For example, you can only force the sale of land through the Supreme Court. It also has more comprehensive disclosure procedures and a rule specifically addressing contempt of court.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Enforcing Other Types of Orders==

The Family Law Act can also be used to enforce other types of orders, such as:

* orders respecting disclosure of information:

Under section 213 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* orders respecting the conduct of a party:

Under section 228 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

* any other general order that the court can make:

Under section 230 of the Family Law Act, the court may require a payor to:

(1) post security;
(2) pay the recipient's expenses incurred as a result of the payor's breach; or
(3) pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T23:39:39Z

Shannon Aldinger: /* Collecting in the Supreme Court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court. For example, you can only force the sale of land through the Supreme Court. It also has more comprehensive disclosure procedures and a rule specifically addressing contempt of court.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T23:38:42Z

Shannon Aldinger: /* Enforcing orders about the care of children */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court. For example, you can only force the sale of land through the Supreme Court. It also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.

Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T23:28:06Z

Shannon Aldinger: /* Collecting without the help of FMEP */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts,
*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, and
*forcing the sale of the payor's property.

====Collecting in the Supreme Court====

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court. For example, you can only force the sale of land through the Supreme Court. It also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'', the provincial ''Court Order Enforcement Act'', and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Under the the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act], a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court) Section 3 of ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T22:39:15Z

Shannon Aldinger: /* Payors of support */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish 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.

====Collecting in the Supreme Court====

Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property, and commencing proceedings against the payor for contempt of court, among other things.

These are the important parts of the Supreme Court Family Rules dealing the collection of arrears:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Section 3 of that act also allows for the attachment of wages.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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

[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T22:36:13Z

Shannon Aldinger: /* Recipients of support */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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, its services are highly recommended as the lawyers are well-versed with the enforcement options available as, unlike other lawyers, they deal with them daily.

If you choose to enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept!

Payors who find themselves in such a situation can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish 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.

====Collecting in the Supreme Court====

Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property, and commencing proceedings against the payor for contempt of court, among other things.

These are the important parts of the Supreme Court Family Rules dealing the collection of arrears:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Section 3 of that act also allows for the attachment of wages.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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

[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T22:31:50Z

Shannon Aldinger: /* Some preliminary comments */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themselves and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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 enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept!

Payors who find themselves in such a situation can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish 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.

====Collecting in the Supreme Court====

Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property, and commencing proceedings against the payor for contempt of court, among other things.

These are the important parts of the Supreme Court Family Rules dealing the collection of arrears:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Section 3 of that act also allows for the attachment of wages.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T22:21:11Z

Shannon Aldinger: /* Some preliminary comments */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themself and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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 enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept!

Payors who find themselves in such a situation can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish 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.

====Collecting in the Supreme Court====

Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property, and commencing proceedings against the payor for contempt of court, among other things.

These are the important parts of the Supreme Court Family Rules dealing the collection of arrears:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Section 3 of that act also allows for the attachment of wages.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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

[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-13T22:18:43Z

Shannon Aldinger: /* Some preliminary comments */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themself and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court 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, by jail time, by both a fine and some time in jail, or by something more creative. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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 enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept!

Payors who find themselves in such a situation can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish 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.

====Collecting in the Supreme Court====

Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property, and commencing proceedings against the payor for contempt of court, among other things.

These are the important parts of the Supreme Court Family Rules dealing the collection of arrears:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Section 3 of that act also allows for the attachment of wages.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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[[Category:JP Boyd on Family Law]]

Shannon Aldinger

2019-06-12T14:16:24Z

Shannon Aldinger:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Shannon Aldinger''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Resolving Family Law Problems in Court]]. Shannon graduated from McGill University (BA Hon) in 1992, obtained her law degree from Dalhousie Law School in 1995, and was called to the bar in 1996. She is a family law lawyer and mediator in the Comox Valley on Vancouver Island, and has represented clients in the Provincial and Supreme Courts of BC as well as the BC Court of Appeal. She has extensive experience in all areas of family law practice including providing legal advice, negotiating settlements, and providing representation in court dealing with parenting arrangements, child and spousal support, division of property and debts, spousal assault torts, protection orders, restraining orders, and family law agreements. She is an active member of the Trial Lawyers Association of BC (TLABC), including a current member of its family law committee and a past member of its seminar committee. She has made numerous public education presentations about family law through TLABC, the local transition society, community justice centre, military family resource centre and Legal Services Society.

| name = Shannon Aldinger
| image = [[image:Saldinger.png|150px|left|link=|Shannon Aldinger]]
| organization = Family Law Lawyer & Mediator, Courtenay BC
}}

<noinclude>
[[Category:Contributor Bio|Aldinger]]
[[Category:JP Boyd on Family Law Contributors|Aldinger]]

</noinclude>

Shannon Aldinger

2019-06-12T14:15:53Z

Shannon Aldinger:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Shannon Aldinger''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Resolving Family Law Problems in Court]]. Shannon graduated from McGill University (BA Hon) in 1992, obtained her law degree from Dalhousie Law School in 1995 and was called to the bar in 1996. She is a family law lawyer and mediator in the Comox Valley on Vancouver Island, and has represented clients in the Provincial and Supreme Courts of BC as well as the BC Court of Appeal. She has extensive experience in all areas of family law practice including providing legal advice, negotiating settlements, and providing representation in court dealing with parenting arrangements, child and spousal support, division of property and debts, spousal assault torts, protection orders, restraining orders, and family law agreements. She is an active member of the Trial Lawyers Association of BC (TLABC), including a current member of its family law committee and a past member of its seminar committee. She has made numerous public education presentations about family law through TLABC, the local transition society, community justice centre, military family resource centre and Legal Services Society.

| name = Shannon Aldinger
| image = [[image:Saldinger.png|150px|left|link=|Shannon Aldinger]]
| organization = Family Law Lawyer & Mediator, Courtenay BC
}}

<noinclude>
[[Category:Contributor Bio|Aldinger]]
[[Category:JP Boyd on Family Law Contributors|Aldinger]]

</noinclude>

Shannon Aldinger

2019-06-12T14:09:16Z

Shannon Aldinger:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Shannon Aldinger''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Resolving Family Law Problems in Court]]. She is a family law lawyer and mediator in the Comox Valley on Vancouver Island. Shannon has practiced law since 1996, and has represented clients in the Provincial and Supreme Courts of BC and the BC Court of Appeal. She has extensive experience in all areas of family law practice including providing legal advice, negotiating settlements, and providing representation in court dealing with parenting arrangements, child and spousal support, division of property and debts, spousal assault torts, protection orders, restraining orders, and family law agreements. She is an active member of the Trial Lawyers Association of BC (TLABC), including a current member of its family law committee and a past member of its seminar committee. She has made numerous public education presentations about family law through TLABC, the local transition society, community justice centre, military family resource centre and Legal Services Society.

| name = Shannon Aldinger
| image = [[image:Saldinger.png|150px|left|link=|Shannon Aldinger]]
| organization = Family Law Lawyer & Mediator, Courtenay BC
}}

<noinclude>
[[Category:Contributor Bio|Aldinger]]
[[Category:JP Boyd on Family Law Contributors|Aldinger]]

</noinclude>

Shannon Aldinger

2019-06-12T14:08:08Z

Shannon Aldinger:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Shannon Aldinger''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Resolving Family Law Problems in Court]]. She is a family law lawyer and mediator in the Comox Valley on Vancouver Island. Shannon has practiced law since 1996, and has represented clients in the Provincial and Supreme Courts of BC and the BC Court of Appeal. She has extensive experience in all areas of family law practice including providing legal advice, negotiating settlements, and providing representation in court dealing with parenting arrangements, child and spousal support, division of property and debts, spousal assault torts, protection orders, restraining orders, and family law agreements. She is an active member of the Trial Lawyers Association of BC, including a current member of its family law committee and a past member of its seminar committee. She has made numerous public education presentations about family law through the local transition society, community justice centre, military family resource centre and Legal Services Society.

| name = Shannon Aldinger
| image = [[image:Saldinger.png|150px|left|link=|Shannon Aldinger]]
| organization = Family Law Lawyer & Mediator, Courtenay BC
}}

<noinclude>
[[Category:Contributor Bio|Aldinger]]
[[Category:JP Boyd on Family Law Contributors|Aldinger]]

</noinclude>

Changing Orders in Family Matters

2019-06-12T14:01:07Z

Shannon Aldinger: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process. For more information about changing consent orders for spousal support, see the section "Changing consent orders for spousal support" later in this chapter.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]'' 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 including further detail in a parenting schedule.

====Reducing a parenting schedule====

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

*the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
*a mature child over the age of 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]] and [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:58:32Z

Shannon Aldinger: /* A few preliminary comments= */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process. For more information about changing consent orders for spousal support, see the section "Changing consent orders for spousal support" later in this chapter.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]'' 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 including further detail in a parenting schedule.

====Reducing a parenting schedule====

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

*the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
*a mature child over the age of 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]] and [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:50:14Z

Shannon Aldinger: /* Financial Statements */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]'' 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 including further detail in a parenting schedule.

====Reducing a parenting schedule====

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

*the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
*a mature child over the age of 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]] and [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:44:26Z

Shannon Aldinger: /* Financial Statements */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]'' 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 including further detail in a parenting schedule.

====Reducing a parenting schedule====

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

*the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
*a mature child over the age of 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]] and [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:38:36Z

Shannon Aldinger: /* Increasing a parenting schedule */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]'' 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 including further detail in a parenting schedule.

====Reducing a parenting schedule====

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

*the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
*a mature child over the age of 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:37:23Z

Shannon Aldinger: /* Vague schedules */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]'' 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 including further detail in a parenting schedule.

====Reducing a parenting schedule====

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

*the parent and child have moved far enough away as to make the original parenting schedule impossible to comply with,
*a mature child over the age of 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:31:50Z

Shannon Aldinger: /* Divorce Act orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]'' 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:30:52Z

Shannon Aldinger: /* Orders about the care of children */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the act gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the ''[[Divorce Act]]''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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T13:30:14Z

Shannon Aldinger: /* Divorce Act orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 Section 17] of the act gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend orders dealing with custody and access.

Section 17 of the''[[Divorce Act]]''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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody under the ''[[Divorce Act]]''====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 12 or so has expressed a wish to change their living arrangements (ie: wants to spend more time 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 under the ''[[Divorce Act]]''====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T02:56:33Z

Shannon Aldinger: /* A few preliminary comments= */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 11 or 12 or so has expressed a wish to live with the other parent.

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

====Changing orders about access====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 11 or 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-12T02:41:25Z

Shannon Aldinger: /* A few preliminary comments= */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made; or

(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:

(a) the change in circumstances or the evidence, or both;

(b) the length of time that has passed since the interim order was made;

(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement

(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;

(d) whether a trial has been scheduled; and

(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 11 or 12 or so has expressed a wish to live with the other parent.

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

====Changing orders about access====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 11 or 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-11T21:33:15Z

Shannon Aldinger:

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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 get older, 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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:
(a) the change in circumstances or the evidence, or both;
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled; and
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 11 or 12 or so has expressed a wish to live with the other parent.

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

====Changing orders about access====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 11 or 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-11T20:59:31Z

Shannon Aldinger: /* A few preliminary comments= */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and varying a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:
(a) the change in circumstances or the evidence, or both;
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled; and
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 11 or 12 or so has expressed a wish to live with the other parent.

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

====Changing orders about access====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 11 or 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-11T20:51:51Z

Shannon Aldinger: /* A few preliminary comments= */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:
(a) the change in circumstances or the evidence, or both;
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled; and
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

Due to the cost, time and stress of going to court, it is often not worthwhile to spend your time, energy and money going to court to try to change an interim order. It is often best to just get an early trial date and keep trying to settle the matter.

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 11 or 12 or so has expressed a wish to live with the other parent.

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

====Changing orders about access====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 11 or 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Changing Orders in Family Matters

2019-06-11T20:49:58Z

Shannon Aldinger:

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.clicklaw.bc.ca/resource/2721 when you can change a final order]
}}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. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been an important change in circumstances since the order was made. Not only does the change have to be important, but also varying the order needs to be the right solution. A court will not vary an order just because one party does not like the original order.

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

=A few preliminary comments==

Before embarking on the rest of this chapter, it is useful to know the following:

*There is a difference between a "review" of a final order and a "variation" of a final order:

A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school).

*There is a difference between varying a final order made by a judge after a hearing or a trial and a final order made by consent (meaning both parties agreed to it):

In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside:

[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12]

The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process.

*Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.

Section 216(3) allows the court to change, suspend or terminate an interim order if:

(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors:
(a) the change in circumstances or the evidence, or both;
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled; and
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).

==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 or doesn't like the original order; 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 [http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec5 s. 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody or access made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that transfer the matter to be heard there.

[http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec17 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. In its 2011 decision of ''P.(L.M.) v. S.(L.)'', 2011 SCC 64, the Supreme Court of Canada articulated that:
*the change must be one that if known at the time of the initial order would have resulted in different terms; and
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.

====Changing orders about custody====

A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 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 that affects the child's best interests before a court will even consider the application. Once this hurdle is crossed, the court will look at all of the circumstances before making a 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 11 or 12 or so has expressed a wish to live with the other parent.

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

====Changing orders about access====

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,
*one of the parents has been frustrating access,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access schedule is no longer convenient, or
*a mature child over the age of 11 or 12 or so has expressed a wish to see the other parent more or less often.

====Statutory provisions====

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

*s. 2: definitions
*s. 5: 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 that made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 of the ''[[Family Law Act]]'' sets out the test to vary orders about parenting arrangements:

<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 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):
<blockquote><tt>
(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
</tt></blockquote>

The section also requires that all agreements or orders protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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 a child has grown up and has her own opinions about the best parenting schedule, or perhaps a parent's work schedule has changed.

====Vague schedules====

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

A common problem occurs when a schedule says only that a person will have "liberal and generous access," or sets an access schedule that is vague. In situations like this, it is easy for the schedule to be frustrated. What is "liberal and generous" access anyway? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur.

Say, for example, that an order says this:

<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 12 or so has expressed a wish not to see a parent,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*the schedule is proving harmful to the mental or physical health and welfare of the child.

Where there are allegations involving mental health issues, parenting capacity, or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report that supports the allegations. Needs of the child assessments are discussed in more detail in the chapter [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] (in the section on Reports and Assessments) and in the ''How Do I?'' part of this resource under [[How Do I Get a Needs of the Child Assessment?]].

====Increasing a parenting schedule====

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

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

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

==Orders for 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 [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. (The Provincial Court cannot make or vary orders under the ''Divorce Act''.) [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act.

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 that would make an order under the Guidelines inappropriate.
*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.

[http://canlii.ca/t/80mh#sec14 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 through a Financial Statement, Form F8 of Supreme Court Family Rules, which described a person's income, expenses, assets and liabilities and is given on the person's oath or affirmation like an affidavit. These are the rules about who may have to produce a Financial Statement:

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]] in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

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

====Financial Statements====

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

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

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

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see [[Discovery Process in a Family Law Matter#The Provincial Court|Discovery Process - The Provincial Court]].

====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

==Orders about 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 and says that support shouldn't be paid.

===Changing an order refusing (dismissing) support===

It used to be the case that a claim for spousal support that was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for the person in financial need.

A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, called into question just how ''final'' final orders about spousal support should be. In that case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally''; in other words, they should say that the issue is not decided.

A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in their financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered.

===Changing an order allowing support===

When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:

<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>

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

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

====Changing reviewable orders for support====

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

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

Or, it might say something like this:

<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote>

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

<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote>
<blockquote><blockquote><tt>(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the type of family dispute resolution by which the review will take place,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the grounds on which a review will be permitted, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the matters to be considered for the purposes of a review.</tt></blockquote></blockquote>

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

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

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

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

====Changing consent orders for support====

A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and had a reasonable knowledge of what their circumstances were at the time of the order and what they were likely to be in the future.

The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303 the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

#Was the agreement negotiated and entered into fairly, that is, was there an equality of bargaining power?
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made.
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described out in the legislation?

In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Secondly, the court should consider whether the order met the criteria for spousal support set out in the ''Divorce Act''.

Thirdly, if the order passes the first two parts of the test, the court should look at whether the consent order continues to reflect the parties' intentions at the time the order was made, and whether the terms of the consent order continue to meet the criteria set out in the legislation.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
*''[[Family Law Act]]''
*''[[Divorce Act]]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1687 Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2721 Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]
* [http://www.clicklaw.bc.ca/resource/1622 Legal Services Society Family Law in BC Website: All about court orders]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T19:24:56Z

Shannon Aldinger:

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order under the Family Law Act, important facts will usually include:

*the date when you began living together, the date of marriage (if any) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Enforcing Orders in Family Matters

2019-06-11T19:23:43Z

Shannon Aldinger:

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour their obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==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 monitors 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 court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending themself and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires.

Once the decision is made, the judge'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 people 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 steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

The Supreme Court 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, by jail time, by both a fine and some time in jail, or by something more creative. 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, 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 place 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 Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a reciprocating jurisdiction under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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 their 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 enroll 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 being 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.

====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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept!

Payors who find themselves in such a situation can enroll 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 enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===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 payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish 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.

====Collecting in the Supreme Court====

Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property, and commencing proceedings against the payor for contempt of court, among other things.

These are the important parts of the Supreme Court Family Rules dealing the collection of arrears:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Section 3 of that act also allows for the attachment of wages.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have ''reasonable and generous'' parenting time, or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact 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 parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 282 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the ''Act'''s extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called ''contracting states''. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of ''habitual residence''. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention occurs when a parent, institution or other body’s ''rights of custody'' have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. Rights of custody can arise under a court order, written agreement or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of June 2017, the Hague Convention applies between Canada and the following contracting states:

:Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

As of June 2017, the following contracting states do not have a reciprocating arrangement with Canada:

:Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino, Seychelles, Singapore, Thailand and Ukraine.

Countries not listed above have elected not to be bound by the Convention. For more information and the current standing of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to their 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 punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr 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 can't simply mail or fax it to their address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

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.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice: Enforcing support]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T19:09:41Z

Shannon Aldinger: /* Protection orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order under the Family Law Act, important facts will usually include:

*the date when you began living together, the date of marriage (if any) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T19:09:14Z

Shannon Aldinger: /* Important factors */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order under the Family Law Act, important facts will usually include:

*the date when you began living together, the date of marriage (if any) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T19:05:15Z

Shannon Aldinger: /* Important factors */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order, important facts will usually include:

*the date when you began living together, the date of marriage (if any) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T19:04:45Z

Shannon Aldinger: /* Restraining orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order, important facts will usually include:

*the date when you began living together and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T18:58:19Z

Shannon Aldinger: /* Protection orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order, important facts will usually include:

*the date when you began living together and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Restraining orders===

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 section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T18:56:12Z

Shannon Aldinger: /* Protection orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

- orders prohibiting or limiting contact with the at-risk family member;
- orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
- orders prohibiting a party from following the at-risk family member,
- orders prohibiting the possession of a weapon, firearm or a specified object,
- orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
- orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order, important facts will usually include:

*the date when you began living together and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Restraining orders===

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 section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T18:23:33Z

Shannon Aldinger: /* Protection orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

- orders prohibiting or limiting contact with the at-risk family member;
- orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
- orders prohibiting a party from following the at-risk family member,
- orders prohibiting the possession of a weapon, firearm or a specified object,
- orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
- orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

===Restraining orders===

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 section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-11T18:13:04Z

Shannon Aldinger: /* Protection orders and restraining orders */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}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 and what amount of 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 section 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 that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, 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 purposes 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 financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They 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 lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are 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 the judge's decision is handed down following a 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 a 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 ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application 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

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and 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. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules 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 property,
*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.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===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 [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

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 in more detail below.

====The 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, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence 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 you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $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. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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.

====The Application Response====

The 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,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 4:00 pm 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 or months. 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 court on a particular day or there could be 30. 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 (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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 4:00 pm 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 4:00 pm 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 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr 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 running 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because 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.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line 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. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am 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." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that 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.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===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 takes effect and 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 may change depending on whether the application is for an 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 ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 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 ''14 business days'' of being served.

====Responding to an application response====

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 [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; 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 [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''.

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 their 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 of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==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.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are 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

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

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 [http://www.clicklaw.bc.ca/resource/1638 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 the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this 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.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 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.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, 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, most parents, once they have complied with Rules 5 and 21, 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.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 their copy at least ''seven days'' 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.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===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.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which 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 either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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 their 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their 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 their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===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 decision. 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 for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates 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 responsible for arranging things like visits to the doctor and dentist,
*who was 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,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates 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,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate 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.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

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, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*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.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their 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 showing earnings-to-day or a letter from the 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 new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate 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.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order 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 unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of protection order , depending on what the circumstances are and which order makes the most sense.

===Restraining orders===

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 section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 7, 2017}}

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[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]