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Difference between revisions of "Changing Orders in Family Matters"
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Changing Orders in Family Matters (view source)
Revision as of 21:10, 19 May 2013
, 21:10, 19 May 2013→Orders about the care of children
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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. | 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. | 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=== | ===''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'', | 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 <span class="noglossary">transfer</span> 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. | [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. | ||
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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: | 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 | *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. | *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. | *This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. | ||
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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. | 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. | ||
[http://canlii.ca/t/8q3k Section 47] sets out the test to vary orders about parenting arrangements: | [http://canlii.ca/t/8q3k 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> | <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> | ||
