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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 21:14, 15 April 2013
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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 | 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'', 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. | ||
[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. | ||
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: | 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: | ||
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<blockquote><tt>(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.</tt></blockquote> | <blockquote><tt>(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.</tt></blockquote> | ||
It's up to the | 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. | ||
====Changing orders about custody==== | ====Changing orders about custody==== | ||
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*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents. | *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 | In other words, the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application. 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: | Cases where an order for custody has been varied include circumstances such as where: | ||
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====Changing orders about access==== | ====Changing orders about access==== | ||
''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances | ''Gordon v. Goertz'' also applies to changing access orders: the applicant must show that there has been a serious change in circumstances that 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: | Orders for access are most commonly varied because: | ||
