Difference between revisions of "Changing Family Law Orders and Agreements Involving Children"

Changing an order is called ''varying'' an order. An order can only be varied by a new order. Changing an agreement is called ''amending'' an agreement. An agreement can be amended by making a new agreement, usually called an ''addendum agreement'' or something to the same effect. It can also be changed by the court setting the agreement aside and making an order in its place.

Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a "change in circumstances" since the order was made.

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''. If it was made under the ''Family Law Act'', it will depend on whether the order was made by the Supreme Court or the Provincial Court. Almost the same general considerations that apply to varying orders apply to setting aside agreements.

Under s. 5 of the ''[[Divorce Act]]'', the Supreme Court has the jurisdiction to vary a ''Divorce Act'' order for custody or access made anywhere in Canada as long as the person making the application, (the applicant), ordinarily lives in British Columbia when the application is made or if both spouses have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to <span class="noglossary">transfer</span> the matter to be heard in the other province or territory.

The general test under the ''[[Family Law Act]]'' to vary orders is at s. 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way ss. 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in s. 251(1) will apply:

In  [http://canlii.ca/t/gnftl ''Williamson v. Williamson''], 2016 BCCA 87 the Court of Appeal confirmed the test to apply in an application to vary parenting time arrangements under the ''Family Law Act'' is the same test that applies to the variation of custody arrangements under the ''Divorce Act''. Under this test, a ''material change in circumstances'' is:

 

# a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child, 

# which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

The legal test that the court must apply to set aside part of an agreement depends on the nature of the change requested. Where the change sought relates to parenting arrangements for a child, the court will consider whether there has been a change in circumstances and the court will want to ensure that the agreement is in the best interests of the child.

*This assessment is based on the findings of the judge who made the previous order, as well as the new circumstances.

Orders about guardianship and parental responsibilities can be varied by another order. Agreements about parental responsibilities can be changed if the parties decide to amend the agreement. If they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.

Under s. 51(1) of the ''[[Family Law Act]]'', the court may make an order appointing someone as a guardian of a child or make an order ''terminating'' someone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship. However, s.37 (1) says that:

Orders and agreements about parenting schedules are most commonly varied because:  

*one of the parties has been frustrating the schedule,

*a party is constantly late or cancels visits frequently,

*the child is older and is more able to spend more time with the visiting parent,

*a party has moved and the old parenting schedule is no longer convenient or,  

*the child wishes to see the visiting party more or less often.

Problems often crop up when an order or agreement says only that a parent will have liberal and generous time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule not to work. What is liberal and generous time anyway? Who decides what is liberal and what is generous? Say an order or agreement says this:

*a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,

*a party has attempted to interfere with the child's relationship with the other party, or

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 or an assessment of the needs of the child, the views of the child, and the ability of each of the child's caregivers to meet the child's needs. The types of assessments that are available to parties to a family law case in British Columbia are discussed in more detail at the start of the [[Children in Family Law Matters#Reports and assessments|Children in Family Law Matters]] chapter, under the heading [[Children in Family Law Matters#Reports and assessments|Reports and Assessments]].

*a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship,

*a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement,

*a child is older and able to spend more time away from a parent,

*a child over the age of eleven or twelve or so has expressed a wish to see more of the other person.

*there is an employment opportunity,

*the parent is in a new relationship with someone from out of town,

*the parent wants to be closer to family,

*there is a unique educational opportunity for either the parent or the children,

*there is a unique medical or therapeutic opportunity for either the parent or the children.

Relocation under the ''[[Divorce Act]]'' is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can make it impossible for a spouse to have access to a child. In order for the spouse who is moving to avoid being in breach of an order for custody or access, the spouse will need to apply to the court for an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', discussed above. The reasoning from that case is roughly this:  

It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law following ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' is quite contradictory and the best that can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has almost a 60% chance of being allowed to do so. In 2011, Professor Rollie Thompson of the law school at Dalhousie University gave a presentation to local lawyers updating the case law on mobility issues in BC, and what he learned was this:

The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating. There are different processes depending on whether there is a court order or agreement in place with respect to parenting arrangements.

 

 

 

 

 

 

Where the parties have an existing order or agreement with respect to parenting arrangements, the ''Family Law Act'' sets out two new tests to determine whether a guardian will be permitted to relocate if another guardian objects.

Here's how that process works:.

First, under s. 66, a guardian who plans a move, with or without the child, that will have a significant impact on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all other ''guardians'' and ''persons with contact'' with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by themselves.

Second, under s. 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from applying to stop the move. Only guardians can object; people with contact cannot. However, people with contact can make an application under section 59 of the ''Family Law Act'' or section 60 of the ''Family Law Act'' to seek an order or to change an existing order for contact, for the purpose of maintaining the relationship between the child and a person having contact with the child if the relocation occurs.

Third, if the parties can't resolve their differences about the move, then either guardian can apply to court for orders allowing or preventing the proposed move. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time". The ''moving guardian'' must prove, under s. 69(4) that:

#they have proposed to move ''in good faith,'' and

#they have proposed ''reasonable and workable'' arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life.

If the guardian who is moving can do this, the move is presumed to be in the child's best interests unless the guardian who is objecting to the move can convince the court otherwise.  

The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost equally. In that <span class="noglossary">case</span>, the moving guardian must prove, under s. 69(5) that:

#they have proposed to move "in good faith,"  

#they have proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life, and

If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order."

{{REVIEWED | reviewer = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]],April 16, 2019}}