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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 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. A court will not vary an order just because one party does not like the original order. | Changing an order is called ''varying'' an order. Sometimes an order includes a provision which sets out a list of circumstances under which a final order can be changed, but many (or even most) do not. 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. A court will not vary an order just because one party does not like the original order. | ||
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. | ||
=A few preliminary comments== | |||
Before embarking on the rest of this chapter, it is useful to know the following: | |||
*There is a difference between a "review" of a final order and a "variation" of a final order: | |||
A review does not require that the party seeking the review establishes a material change of circumstance (as is required to get a variation of a court order). Rather, a review is treated as if the issue were being considered by the parties (and the court) for the first time. It is usually made available to parties if circumstances were uncertain at the time the order was made (for example, if one party was to undergo retraining before entering (or re-entering) the workforce, that party would likely need a higher amount of spousal support while attending school but would not know how much income that party could expect to earn after they finished school). | |||
*There is a difference between varying a final order made by a judge after a hearing or a trial and a final order made by consent (meaning both parties agreed to it): | |||
In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the limited circumstances in which a consent order may be varied or set aside: | |||
[12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent | |||
order will operate as a final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract… [at para. 12] | |||
The threshold to change or set aside a contract is pretty high and the categories of grounds include fraud, undue influence, duress, coercion, fresh evidence that was not known at the time the original contract (or in this case consent order) was entered into, and abuse of process. | |||
*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: | |||
(a) a change in circumstances has occurred since the interim order was made; | |||
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available. | |||
When faced with an application to change, suspend or vary an interim order, section 216(4) requires the court to consider all of the following factors: | |||
(a) the change in circumstances or the evidence, or both; | |||
(b) the length of time that has passed since the interim order was made; | |||
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement | |||
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and | |||
(ii) would not necessarily reflect the final arrangement between the parties; | |||
(d) whether a trial has been scheduled; and | |||
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). | |||
==Orders about the care of children== | ==Orders about the care of children== | ||
