Changing Orders in Family Matters: Difference between revisions
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From staging July 2022
Nate Russell (talk | contribs) m (Nate Russell moved page Changing Final Orders in Family Matters to Changing Orders in Family Matters: new title for edition 2020) |
Nate Russell (talk | contribs) (From staging July 2022) |
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|resourcetype = <br/> a fact sheet on | |resourcetype = <br/> a fact sheet on | ||
|link = [ | |link = [https://family.legalaid.bc.ca/bc-legal-system/court-orders/change-order-or-set-aside-agreement-made-bc/when-can-you-change-order when you can change <br/>a final order] | ||
}}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 get older, 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 get older, 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. | ||
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===''Divorce Act'' orders=== | ===''Divorce Act'' orders=== | ||
Under [http://canlii.ca/t/7vbw#sec5 section 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for | Under [http://canlii.ca/t/7vbw#sec5 section 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for parenting or contact 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 | [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 support, parenting, or contact orders. | ||
Section 17 of the ''[[Divorce Act]]'' also sets out the test for the variation of | <!-- HIDDEN OLD DIVORCE ACT HAS CHANGED ON MAX CONTACT | ||
Section 17 of the ''[[Divorce Act]]'' also sets out the test for the variation of parenting orders and contact 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 | <blockquote><tt>(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).</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> | <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> | ||
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*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made. | *the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made. | ||
END HIDDEN CONTENT--> | |||
====Changing parenting orders under the ''[[Divorce Act]]''==== | |||
A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, describes the things that a court must consider when hearing an application to vary a parenting order: | |||
*The person applying for a change must meet the threshold requirement of demonstrating a material change in circumstances affecting the child. | |||
*The person applying for a change | |||
*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 each parent to satisfy them. | *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 each parent to satisfy them. | ||
*This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. | *This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. | ||
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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 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. | 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. The change must have altered the child's needs or the parents' ability to meet those needs in some fundamental way. 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 | Cases where a parenting order has been varied include circumstances such as where: | ||
*the change is in the best interests of the children in the long run, | *the change is in the best interests of the children in the long run, | ||
*the parent with | *the parent with the most parenting time has attempted to alienate the child from the other parent, | ||
*the parent with | *the parent with the most parenting time has repeatedly frustrated the other parent's contact with the child, | ||
*a child has been apprehended by child protection workers, | *a child has been apprehended by child protection workers, | ||
*a child has been abused by the parent with | *a child has been abused by the parent with parenting time, and | ||
*a mature child over the age of 12 or so has expressed a wish to change their living arrangements (i.e.: wants to spend more time with the other parent). | *a mature child over the age of 12 or so has expressed a wish to change their living arrangements (i.e.: wants to spend more time with the other parent). | ||
The court is unlikely to change | The court is unlikely to change a parenting order where the children are happy in an existing stable and secure setting. | ||
====Changing orders | ====Changing contact orders under the ''[[Divorce Act]]''==== | ||
''Gordon v. Goertz'' also applies to changing | ''Gordon v. Goertz'' also applies to changing contact 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''. | ||
Contact orders 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 | *the child has grown up a bit and is more able to spend more time away from the parent with parenting time, | ||
*one of the parents has been frustrating | *one of the parents has been frustrating contact with the child, | ||
*a parent is constantly late or cancels visits frequently, | *a parent is constantly late or cancels visits frequently, | ||
*a parent has moved and the existing | *a parent has moved and the existing parenting schedule is no longer convenient, or | ||
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often. | *a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often. | ||
====Statutory provisions==== | ====Statutory provisions==== | ||
These are the primary sections of the ''Divorce Act'' dealing with varying an order about | These are the primary sections of the ''Divorce Act'' dealing with varying an order about parenting time or contact: | ||
*s. 2: definitions | *s. 2: definitions | ||
*s. 5: jurisdiction in variation proceedings | *s. 5: jurisdiction in variation proceedings | ||
*s. 16: orders | *s. 16 - 16.96: best interests of the child, parenting and contact orders, change in place of residence | ||
*s. 17: | *s. 17: variation, recission or suspension of orders | ||
===''Family Law Act'' orders=== | ===''Family Law Act'' orders=== | ||
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These new Financial Statements are needed to give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order. | These new Financial Statements are needed to give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order. | ||
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 | 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 and Disclosure in Family Law]], in particular the section on the process for the [[Discovery and Disclosure in Family Law#The Supreme Court|Supreme Court]]. | ||
====Statutory provisions==== | ====Statutory provisions==== | ||
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These new Financial Statements are needed to give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order. | These new Financial Statements are needed to give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order. | ||
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 | 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 [[Discovery and Disclosure in Family Law]] section of this chapter, in particular the headings dealing with [[Discovery and Disclosure in Family Law#The Supreme Court|Supreme Court]] and [[Discovery and Disclosure in Family Law#The Provincial Court|Provincial Court]]. | ||
====Statutory provisions==== | ====Statutory provisions==== | ||
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* ''[http://canlii.ca/t/849w Provincial Court Act]'' | * ''[http://canlii.ca/t/849w Provincial Court Act]'' | ||
* [http://canlii.ca/t/ | * [http://canlii.ca/t/b8rn Provincial Court Family Rules] | ||
* ''[http://canlii.ca/t/84d8 Supreme Court Act]'' | * ''[http://canlii.ca/t/84d8 Supreme Court Act]'' | ||
* [http://canlii.ca/t/8mcr Supreme Court Family Rules] | * [http://canlii.ca/t/8mcr Supreme Court Family Rules] | ||
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* [http://www.provincialcourt.bc.ca/ Provincial Court website] | * [http://www.provincialcourt.bc.ca/ Provincial Court website] | ||
* [https://www.bccourts.ca/supreme_court/ Supreme Court website] | * [https://www.bccourts.ca/supreme_court/ Supreme Court website] | ||
* [https://www.clicklaw.bc.ca/resource/4645 Legal | * [https://www.clicklaw.bc.ca/resource/4645 Legal Aid BC's Family Law website's information page "Court orders"] | ||
{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Nate Russell]], June 22, 2022}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} |