Changing Family Law Orders and Agreements Involving Children

There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children can be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children.

This page talks about changing orders for custody and access under the Divorce Act and about changing orders and agreements about parenting arrangements and contact under the Family Law Act. It will also discuss relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province or country.

Introduction

Changing an order is called varying an order. An order can only be varied by a new order. Changing an agreement is called amending an agreement. An agreement can be amended by making a new agreement, usually called an addendum agreement or something to the same effect, or by the court setting aside the agreement and making a different order in its place.

Parents usually want to vary an order or agreement 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 for the children. The court will not vary an order or agreement just 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.

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 Law Act, and, if under the Family Law Act, whether the order was made by the Supreme Court or the Provincial Court. Almost the same general considerations that apply to varying orders apply to setting aside agreements.

The Divorce Act

Under s. 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary a 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 application heard here. 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 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. Section 17 says this:

(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.

It is 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 or the court won't change the order.

The Family Law Act

The rules in the Family Law Act about varying orders and setting aside agreements are different.

Varying Orders

Both the Supreme Court and the Provincial Court have the jurisdiction to vary orders and set aside agreements for guardianship, parenting arrangements and contact. Parenting arrangements means the parts of an order or agreement that talk about parental responsibilities and parenting time. As a rule of thumb, applications to vary orders can only be brought to the court which made the original order, and an order of the Supreme Court can only be varied by the Supreme Court and an order of the Provincial Court can generally only be varied by the Provincial Court.

Section 47 sets out the test to vary orders about parenting arrangements:

On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.

The test to vary orders about contact is at s. 60, and says exactly the same thing, just with the word "contact" in place of the phrase "parenting arrangements".

The general test under the Family Law Act to vary orders is at s. 215(1) and applies when there isn't a specific test required for a particular order the way ss. 47 and 60 are required for orders about parenting arrangements and contact. Since there's no specific to test to vary orders for guardianship, it's the general test that will apply:

Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.

Whenever the court is asked to make an order about guardianship, parenting arrangements and contact, s. 37(1) requires the court to consider only the best interests of the child. The factors to be taken into account in considering the best interests of the child are set out at s. 37(2).

Beyond this, it's difficult to say what the court will consider when changing orders about guardianship, parenting arrangements or contact with a child. The Family Law Act is too new to know how the court will handle questions like these.

Setting Aside Agreements

Under the Family Law Act, the court cannot vary or amend a valid agreement. When the court is convinced that an agreement must change, the court will set aside the parts of the agreement that are causing the problem and make an order in place of the parts set aside. Section 214 of the act says this:

(1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.

(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,

(a) the order replaces that part of the agreement that is incorporated, and

(b) the remainder of the agreement remains effective.

(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,

(a) the order replaces the part of the agreement that provides differently for the same subject matter, and

(b) the remainder of the agreement remains effective.

The legal test that the court must apply to set aside part of an agreement changes depending on the subject of the of the part in question. Most of the time, the court will be concerned that the agreement is in the best interests of the child.

Changing Orders about Custody

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 orders for custody or access made under the Divorce Act:

• The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
• If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
• This assessment is based on the findings of the judge who made the previous order and the new circumstances.
• The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that 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. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the case 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:

1. the change is in the best interests of the children in the long run;
2. the parent with the children's primary residence has attempted to alienate the children from the other parent;
3. the parent with the children's primary residence has repeatedly frustrated the other parent's access to the children;
4. the child has been apprehended by child protection workers;
5. the child has been abused by the parent with the children's primary residence; and,
6. a mature child has expressed a wish to live with the other parent.

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

Changing Orders and Agreements about Guardianship and Parental Responsibilities

The Family Law Act has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person is a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, like aunts and uncles, grandparents and other people who have established a caring relationship with a child.

People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of child by exercising parental responsibilities. Under s. 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and s. 40(3) says:

Parental responsibilities may be allocated under an agreement or order such that they may be exercised by

(a) one or more guardians only, or

(b) each guardian acting separately or all guardians acting together.

Orders about guardianship and parental responsibilities can be varied by another order. Agreements about parental responsibilities can be changed if the parties make another order, or, if they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.

Guardianship

Under s. 51(1) of the Family Law Act, the court may make an order appointing someone as a guardian of a child or make an order "terminating" somone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship, however s.37 (1) says that:

In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

Section 215 provides a general test to change orders that applies when no specific test is provided:

... a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.

In other words, to vary an order appointing a person as guardian, the person making the order, the Applicant, will have to show that there has been a change in circumstances and explain why it is in the best interests of the child to remove the person as guardian.

Parental Responsibilities

The Family Law Act provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:

... the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.

Section 47 talks about orders:

... a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.

Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.

Changing Orders and Agreements About Access, Parenting Time and Contact

Orders and agreements about parenting schedules are most commonly varied because: one of the parties has been frustrating the schedule; a party is constantly late or cancels visits frequently; the child is older and is more able to spend more time with the visiting parent; a party has moved and the old parenting schedule is no longer convenient; or, the child wishes to see the visiting party more or less often.

The case of Gordon v. Goertz also applies to changing access orders under the Divorce Act: the person applying to change the order, 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, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.

Under ss. 47 and 60 of the Family Law Act, the court may vary and order for parenting time or contact if it is satisfied that:

... since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.</tt.>

Sections 44(4) and 58(4) allow the court to set aside an agreement about parenting time or contact if it is:

...satisfied that the agreement is not in the best interests of the child.

When considering applications like these, both the Divorce Act and the Family Law Act require the court to consider the best interests of the child rather than the needs or interests of the parties.

Vague Parenting Schedules

Problems often crop up when an order or agreement says only that a parent will have "liberal and generous" time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule to be frustrated... what is "liberal and generous" time anyway? Who decides what is "liberal" and what is "generous"? Say an order or agreement says this:

"Sally will have parenting time from Friday to Sunday."

When exactly does Sally's access start? When does it end? Who is supposed to pick the child up and drop her off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order or agreement would say:

"Sally will have parenting time from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays."

Even better would be an order or agreement that says:

"Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development date, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm.

"Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access to the child.

"In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Bob.

"On Fathers' Day, Sally's parenting time with the child will be suspended from 10:00am to 2:00pm, during which time Bob will have the child.

"Sally's parenting time with the child will be suspended during the summer, winter and spring school holidays, during which periods the following holiday access schedule will prevail..."

Where there has been a history of difficulties, the court will generally be quite open to further specifying the terms of access.

Reducing Time with a Child

Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:

1. a party has moved far enough away as to make the original access schedule impossible to comply with;
2. a mature child over the age of twelve or so has expressed a wish not to see the person;
3. a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
4. the parties' relationship has worsened to the point that they can no longer cooperate;
5. a party has attempted to interfere with the child's relationship with the other party; and,
6. the party's time with the child is proving harmful to the child's mental or physical health and welfare.

Where there are allegations involving mental health issues, parenting capacity or the children's wishes, it is often essential to have a psychologist or psychiatrist provide a report which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.

Increasing Time with a Child

Of course, parenting schedules can also be changed to increase the amount of time a person has with a child. Circumstances where this has happened include where :

1. a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship;
2. a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement;
3. a child is older and able to spend more time away from a parent; and,
4. a child over the age of eleven or twelve or so has expressed a wish to see more of the other person.

These are just a few of the circumstances in which a person's time with the child can be increased from the amount given in an order or agreement. As long as there has been a change in circumstances since the order or agreement was made and the increased time is in the children's best interests, access arrangements should be adjusted.

Relocating With or Without a Child

It sometimes happens that a parent who has the children for most of the time, whether because of a court order or a separation agreement, wants to move out of town. The parent who wants to move generally wants to move because:

1. there is an employment opportunity;
2. the parent is in a new relationship with someone from out of town;
3. the parent wants to be closer to family;
4. there is a unique educational opportunity for either the parent or the children; or,
5. there is a unique medical or therapeutic opportunity for either the parent or the children.

Normally, the parent on the other end of the stick doesn't want the children to move since any move out of the local area will hamper that parent's ability to see the children as frequently, and the lessening of contact may harm the child's relationship with that parent. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's schedule with the child.

These problems, which used to be called mobility issues, are handled under the Divorce Act and the Family Law Act in different ways.

The Divorce Act and Gordon v. Goertz

Relocation under the Divorce Act is about applying to vary an order for custody or access. Inevitably, a move of even only a few hours away can frustrate a spouse's access to a child, and for the moving spouse to avoid being in breach of an order for custody or access, the spouse will need to apply to an order adjusting the arrangements for custody and access to allow the move. The most important case on this issue is Gordon v. Goertz, discussed above. The reasoning from that case is roughly this:

• The parent applying for a change in the custody or access order must first prove that there has been a material change in the circumstances affecting the child.
• If this threshold is met, the judge on the application must make a fresh assessment about what is in the best interests of the child, considering all of the relevant facts relating to the child's needs and the ability of the each parent to satisfy the child's needs.
• This assessment is based on the findings of the judge who made the previous order and the new circumstances.
• The assessment does not begin with a legal presumption in favour of the parent with whom the child mostly lives, although that 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.

It is always very difficult to say whether the court will allow a parent to move with the children or not. The case law following Gordon is quite contradictory and the best than can usually be said, apart from pointing out some general principles, is that a parent with the children's primary residence has almost a 60% chance of being allowed to do so. In 2011, Professor Rollie Thompson of the law school at Dalhousie University gave a presentation to local lawyers updating the case law on mobility issues in this province, and what he learned was this:

• The parent with primary care is able to move about 50% of the time in Canadian cases these days, down from 60%, but moves are permitted about 57% of the time in BC.
• Moves are allowed about half the time at trial, but are allowed about three-quarters of the time when the application is brought as a variation of a trial decision.
• Moves were refused in 8 of 9 cases where the parents had shared custody of the children, but were allowed in 17 of 18 cases (after counting appeals) where the parent wishing to move was primarily responsible for the care of the children. Where there wasn't a parent who was clearly responsible, the move was allowed in 54% of cases.
• Moves were allowed three-quarters of the time when the children were aged 0 to 5, declining to about half the time for children aged 6 and older.
• Appeals from decisions allowing a move rarely succeed. Appeals from decisions refusing permission to move succeeded 66% of the time.

The tough part about all of this is that it's all fine and dandy to know what happens to people on a statistical basis, but statistics don't tell you anything about what is going to happen if you want to move! However, some of the factors that courts have found to favour a proposed move are these:

1. the spouse seeking the move has better job prospects or a guaranteed job at the proposed destination;
2. the spouse has a support network of family and friends at the new home;
3. there is some benefit at the new home not available at the old home, like better schools or medical programs;
4. the spouses have resources available to them which will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline;
5. the children aren't particularly close to or have no relationship with the spouse who will be staying behind; or,
6. the children are performing poorly in their present setting, and will do better in the new one.

Some of the factors which might indicate that the move is a bad idea are these:

1. the children have lived in their present setting for a significant amount of time and have established roots in their community;
2. the move will damage or terminate the other spouse's relationship with the children;
3. the reason for the move is to alienate the children from the other spouse;
4. the parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship; or
5. there is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday.

It is almost impossible to predict the result of an application to move under Gordon. Because relocation issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended.

The Rules under the Family Law Act

The situation is much different under the Family Law Act. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating and a new test to determine whether a guardian should relocate if another guardian objects. Here's how it works.

First, under s. 66, a guardian who plans a move that will have a "significant impact" on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all guardians and persons with contact with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by him- or herself.

Second, under s. 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from apply to stop the move. Only guardians can object; people with contact cannot.

Third, if the parties can't resolve their views about the move, the moving guardian must prove, under s. 69(4) that:

1. he or she has proposed to move "in good faith"; and,
2. he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and person with significant roles in the child's life.

If the moving guardian can do this, the move is presumed to be in the child's best interests unless another guardian can convince the court otherwise.

The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost-equally. In that case, the moving guardian must prove, under s. 69(5) that:

1. he or she has proposed to move "in good faith";
2. he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and person with significant roles in the child's life; and,
3. the move is in the child's best interests.

The meaning of good faith is discussed at s. 69(6):

For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(c) whether notice was given under section 66;

(d) any restrictions on relocation contained in a written agreement or an order.

Now, if the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order".

Although a person with contact lacks the ability to apply to stop the moving guardian from relocating, he or she may apply under s. 67(2) for an order for contact or to vary an order for contact "for the purpose of maintaining the relationship between the child and a person having contact with the child".

Further Reading in this Chapter

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