Difference between revisions of "Changing Orders in Family Matters"

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 or agreement because something has changed that affects the children. The court will not vary an order or agreement 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. A parent who wishes to bring an application to vary an order or agreement must remember that variation applications are always about the children, not the parent.

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 Relations Act, and, if under the Family Relations Act, whether the order was made by the Supreme Court or the Provincial (Family) Court. The same general considerations that apply to varying an order apply to changing a separation agreement.

===The ''Divorce Act''===

Under s. 5 of the Divorce Act, the British Columbia Supreme Court has the jurisdiction to vary an 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 agree to have the matter heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to transfer the matter to be heard there.

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 bests interests to have maximum contact with each parent. This section provides, in part, as follows:

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

===The ''Family Law Act''===

Section 20 of the act gives the court the authority to change or cancel an order where "circumstances have changed since the order was last made or varied." It is up to the applicant to show that circumstances have changed.

Section 24 of the act sets out the test for the variation of custody, guardianship and access orders. This section provides, in part, as follows:

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:

(a) the health and emotional well being of the child including any special needs for care and treatment;

(b) if appropriate, the views of the child;

(c) the love, affection and similar ties that exist between the child and other persons;

(d) education and training for the child;

(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

In this chapter, I have used the phrase "custodial parent" to describe the parent with whom the child lives most of the time. It's just shorter than saying "the parent with whom the child lives most of the time," and I don't mean to imply that this parent has sole custody of the children. In fact, most parents these days have joint custody of their children even though one parent plainly has the children for a lot more of the time than the other parent.

A 1996 case of the Supreme Court of Canada called Gordon v. Goertz sets out the factors a court must consider when hearing an application to vary an order for custody or access:

The parent 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.

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 the respective parents to satisfy them.

This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.

In other words, 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 application. (This requirement is repeated in both the Divorce Act and the Family Relations Act.) Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the matter was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the status quo.

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

the change is in the best interests of the children in the long run;

a custodial spouse has attempted to alienate the child against the other parent;

a custodial spouse has repeatedly frustrated the non-custodial spouse's access to the child;

a mature child over the age of twelve or so has expressed a wish to live with the other parent.

Note that the courts are unlikely to change custody where the children are happy in an existing stable and secure setting.

===Changing Orders About Guardianship===

===Changing Orders About Access===

====Vague Access Arrangements====