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Difference between revisions of "Changing Orders in Family Matters"

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Changing Orders in Family Matters (view source)

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}}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.  
}}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. In general, orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'' may be varied if there has been a change in circumstances since the order was made. Of course the change has to be an important change, and varying the order needs to be the right solution.
Changing an order is called ''varying'' an order. 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.


This section discusses when you might want to apply to court to vary an order, and how to do it.
This section discusses when you might want to apply to court to vary an order, and how to do it.
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===''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'', 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.
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 <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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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 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 to test to vary orders for guardianship, it's the general test that will apply:
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>
<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 <span class="noglossary">account</span> in considering the best interests of the child are set out at s. 37(2).
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 <span class="noglossary">account</span> in considering the best interests of the child are set out at s. 37(2):


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.
(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.
 
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:
These are the primary sections of the ''[[Family Law Act]]'' dealing with varying orders about the care of children:
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*a mature child over the age of 12 or so has expressed a wish not to see a parent,
*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 his or her care,
*a parent has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care,
*the parents' relationship has worsened to the point that they can no longer cooperate,
*one parent has attempted to interfere with the child's relationship with the other parent, or
*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.
*the schedule is proving harmful to the mental or physical health and welfare of the child.
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*a child over the age of 11 or 12 or so has expressed a wish to spend more time with a parent.
*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 should be adjusted.
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 for child support==
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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.
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 support===
===Changing an order dismissing (refusing) 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.
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.
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