Changing Orders in Family Matters - Revision history

Nate Russell: Replaced content with "Select: * Changing BC Supreme Court Orders, or * Changing Provincial Court Orders"

2025-04-02T19:57:46Z

Replaced content with "Select: * Changing BC Supreme Court Orders, or * Changing Provincial Court Orders"

Nate Russell at 23:08, 26 June 2024

2024-06-26T23:08:22Z

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

Nate Russell: From staging July 2022

2022-08-03T22:35:35Z

From staging July 2022

Show changes

Nate Russell: Nate Russell moved page Changing Final Orders in Family Matters to Changing Orders in Family Matters: new title for edition 2020

2022-08-03T22:34:48Z

Nate Russell moved page Changing Final Orders in Family Matters to Changing Orders in Family Matters: new title for edition 2020

← Older revision	Revision as of 22:34, 3 August 2022
(No difference)

Nate Russell at 18:41, 31 July 2019

2019-07-31T18:41:10Z

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	* [http://www.provincialcourt.bc.ca/ Provincial Court website]		* [http://www.provincialcourt.bc.ca/ Provincial Court website]
	* [https://www.bccourts.ca/supreme_court/ Supreme Court website]		* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
	* [https://www.clicklaw.bc.ca/resource/4645 Legal Services Society's Family Law ~~in BC~~ website: Court orders]		* [https://www.clicklaw.bc.ca/resource/4645 Legal Services Society's Family Law website's information page "Court orders"]

Nate Russell: /* Interim versus final orders */

2019-07-30T17:13:38Z

Interim versus final orders

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	Although it is sometimes possible to vary an interim order, this chapter mostly applies to final orders.		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:		Section 216(3) of the ''[[Family Law Act]]'' allows the court to change, suspend, or terminate an interim order if:

	<blockquote><tt>(a) a change in circumstances has occurred since the interim order was made; or</tt></blockquote>		<blockquote><tt>(a) a change in circumstances has occurred since the interim order was made; or</tt></blockquote>

Nate Russell at 17:06, 30 July 2019

2019-07-30T17:06:05Z

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

	Under [http://canlii.ca/t/7vbw#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 <span class="noglossary">a transfer of</span> the matter to be heard there.		Under [http://canlii.ca/t/7vbw#sec5 section 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 <span class="noglossary">a transfer of</span> the matter to be heard there.

	[http://canlii.ca/t/7vbw#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.		[http://canlii.ca/t/7vbw#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.
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	===''Divorce Act'' orders===		===''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.		Under [http://canlii.ca/t/7vbw#sec5 section 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:		Section 17 of the ''Divorce Act'' says this:
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	<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</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/t/80mh#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.		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/t/80mh#sec14 section 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====		====Financial Statements====

Nate Russell: /* Changing consent orders for support */

2019-07-16T00:04:06Z

Changing consent orders for support

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	====Changing consent orders for support====		====Changing consent orders for support====

	A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about~~, since there~~ is an assumption that the parties to ~~the~~ order knew what they were doing when they agreed to ~~the terms of~~ the order, ~~and~~ had a reasonable knowledge of ~~what~~ their circumstances ~~were~~ at the time ~~of the order~~ and ~~what they were likely to be~~ in the future.		A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about. There is an assumption that the parties to a consent order knew what they were doing when they agreed to the order, had a reasonable knowledge of their circumstances at the time, and could reasonably foresee how their circumstances might change in the future.

	The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:		The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted:

	#Was the agreement negotiated and entered into fairly~~, that is,~~ was there an equality of bargaining power?		#Was the agreement negotiated and entered into fairly? (i.e. 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 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?		#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 in the legislation?

	In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?		In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice?

Nate Russell: /* Changing reviewable orders for support */

2019-07-15T23:54:34Z

Changing reviewable orders for support

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

	<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2019, and continuing on the first day of each and every month thereafter. This order may be reviewed on the application of either party on or after 1 June ~~2018~~."</blockquote>		<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2019, 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 2020."</blockquote>

	Or, it might say something like this:		Or, it might say something like this:

Nate Russell: /* Changing an order allowing support */

2019-07-15T23:48:48Z

Changing an order allowing support

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	===Changing an order allowing support===		===Changing an order allowing support===

	When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', they must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one that is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370, the Supreme Court of Canada said that a material change is one that, if known at the time of the original order, would have resulted in a different order being made. A variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.		When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', 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 court hearing a variation application will treat the original order as correct and limit its role to determining whether the change is sufficient to justify a variation.

	[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this:		[http://canlii.ca/t/7vbw#sec17 Section 17(4.1)] 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>(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>
			Section 17(7) continues to say:
	<blockquote><tt>(7) A variation order varying a spousal support order should</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>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>