Difference between revisions of "Changing Orders in Family Matters"

Unless you're talking about property and debt or divorce, there really is no such thing as an absolutely final order in court proceedings about family law matters. Children grow up, adults take new jobs and start new relationships, and the obligations involved in leaving a relationship don't end with the final order. As time passes, final orders often need to be updated as circumstances change.

Parents often want to vary an order about the care of children because something has changed for the parents. The court, on the other hand, is only interested in varying an order because something has changed that affects the children. The court will not vary an order simply because one parent is annoyed with the other parent; something new must have happened that affects the child's best interests since the last order was made, or the court will leave the old arrangements alone. If you want to make an application to vary an order about the care of a child, remember that variation applications are always about the child, not you.

The process for applying to vary an order will depend on whether the original order was made under the federal ''Divorce Act'' or the provincial ''Family Law Act'', and if under the ''Family Law Act'', whether the order was made by the Supreme Court or the Provincial Court.

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:

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.

*The person applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

Cases where an order for custody has been varied include circumstances such as where:

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances which affects the child's best interests before a court will even consider the matter, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to custody, as if the issue was being heard for the first time, with no presumption in favour of the status quo.

Orders for access are most commonly varied because:

These are the primary sections of the ''Divorce Act'' dealing with varying an order about custody or access:

*s. 17: varying orders

Both the Supreme Court and the Provincial Court can vary orders for guardianship, parenting arrangements and contact. An application to vary an order can only be brought to the court which made the original order, which means that an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

<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>

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The ''Family Law Act'' is too new to know how the court will handle questions like these.

*s. 1: definitions

*s. 216: interim orders

Sometimes conflict about a parenting schedule happens because the schedule is vague, imprecise and open to interpretation. At other times, circumstances change making a parenting schedule obsolete, perhaps because a child has grown up and has her own opinions or perhaps because a parent work schedule has changed.

Sometimes the easiest way to fix a problem with a parenting schedule isn't to apply to court to rigidly enforce the order, but to get creative and thing about ways that the order could be changed to solve the problem. Say someone's shift ends at 5:00 but the child is supposed to be picked up at 4:00. The answer may not be to enforce the order, it might to change it.

Where there has been a history of difficulties, the court will generally be quite open to further specifying 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:

====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:

These are just a few of the circumstances in which a parent's time with the child can be increased from the amount given in an order. As long as there has been a change in circumstances since the order was made and the increased time is in the children's best interests, parenting schedules should be adjusted.

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.