Difference between revisions of "Changing Orders in Family Matters"

|link        = [http://www.clicklaw.bc.ca/resource/2721 when you can change <br/>a final order]  

Under [http://canlii.ca/t/7vbw#sec5 section 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">a transfer of</span> the matter to be heard there.

[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce 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 of the ''[[Divorce Act]]'' 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:

<blockquote><tt>(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.</tt></blockquote>

====Changing orders about custody under the ''[[Divorce Act]]''====

 

*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.

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:

*the parent with custody has attempted to alienate the child from the other parent,

*the parent with custody has repeatedly frustrated the other parent's access to the child,

*a child has been abused by the parent with custody, and

The court is unlikely to change custody where the children are happy in an existing stable and secure setting.

====Changing orders about access under the ''[[Divorce Act]]''====

''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.  Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, 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:

*the child has grown up a bit and is more able to spend more time away from the parent with custody,

*one of the parents has been frustrating access,

*a parent has moved and the existing access schedule is no longer convenient, or

These are the primary sections of the ''Divorce Act'' dealing with varying an order about custody or access:

*s. 16: orders for custody and access

*s. 17: varying orders

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For more information on Financial Statements, see the page on [[Discovery Process in a Family Law Matter]], in particular the section on the process for the [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]].

Links to and examples of the Financial Statement and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]] and [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For more information on Financial Statements, see the section in this chapter entitled [[Discovery Process in a Family Law Matter]], in particular the headings dealing with [[Discovery Process in a Family Law Matter#The Supreme Court|Supreme Court]] and [[Discovery Process in a Family Law Matter#The Provincial Court|Provincial Court]].

* [http://canlii.ca/t/85pb Provincial Court Family Rules]

* [https://www.clicklaw.bc.ca/resource/4645 Legal Services Society's Family Law website's information page "Court orders"]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}