Changing Family Law Orders, Awards 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 may 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. In family law, change in circumstances is the term used to describe when something new has happened that justifies a change to the order or agreement.
This section 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 also discusses relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province, or country.
Important changes
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.
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. It can also be changed by the court setting the agreement aside and making an order in its place.
Parents usually want to vary an order or agreement because something has changed. The court will not vary an order or agreement lightly. The person who wants to change an order must establish that there has been a change in circumstances since the order was made.
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. If it was made under the Family Law Act, it will depend on 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 section 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 have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to transfer the matter to be heard in the other province or territory.
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.
Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people.
Older orders and agreements that use the terms custody and access are still good and don't need to be updated to the new language. If you have an older order or agreement that says you have custody, you now have decision-making responsibility for your children. If you are or were married to your ex and have an order or agreement that says you have access, you now have parenting time.
Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including decisions changing an order. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the Divorce Act now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.
The Family Law Act
The rules in the Family Law Act about varying orders and setting aside agreements are different from each other, and also change depending on the subject of the part of the order or agreement that is sought to be varied or set aside.
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. As a rule of thumb, applications to vary orders can only be brought to the court that made the original order: 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 of the Family Law Act 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 section 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 section 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way sections 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in section 251(1) 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, section 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 section 37(2).
In Williamson v. Williamson, 2016 BCCA 87, the Court of Appeal confirmed that the test to apply in an application to vary parenting time arrangements under the Family Law Act is the same test that applies to the variation of custody arrangements under the Divorce Act. Under this test, a material change in circumstances is:
- a change in the condition, means, needs, or circumstances of the child and/or the ability of the parents to meet the needs of the child,
- which materially affects the child, and
- which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
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 of the agreement that were 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 depends on the nature of the change requested. Where the change sought relates to parenting arrangements for a child, the court will consider whether there has been a change in circumstances and will want to ensure 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, [1996] 2 SCR 27, 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 each parent to satisfy the child's needs.
- This assessment is based on the findings of the judge who made the previous order, as well as 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 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 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:
- The change is in the best interests of the children in the long run.
- The parent with the children's primary residence has attempted to alienate the children from the other parent.
- The parent with the children's primary residence has repeatedly frustrated the other parent's access to the children.
- The child has been apprehended by child protection workers.
- The child has been abused by the parent whom the child primarily lives with.
- 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.
Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people.
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 a child by exercising parental responsibilities. Under section 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and section 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 decide to amend the agreement. If they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.
Guardianship
Under section 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 someone'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 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 that the person be removed 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 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 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 sections 47 and 60 of the Family Law Act, the court may vary an 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.
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.
Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people.
Judges also now have a long list of best-interests factors to take into consideration when making decisions about children, including when making decisions about changing orders about parenting after separation. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the Divorce Act now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.
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 not to work. 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 day, 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 prepared to provide specific terms setting out the parenting arrangements.
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:
- a party has moved far enough away as to make the original access schedule impossible to comply with,
- a mature child has expressed a wish not to see the person,
- a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in their care,
- the parties' relationship has worsened to the point that they can no longer cooperate,
- a party has attempted to interfere with the child's relationship with the other party, or
- 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 or an assessment of the needs of the child, the views of the child, and the ability of each of the child's caregivers to meet the child's needs. The types of assessments that are available to parties to a family law case in British Columbia are discussed in more detail at the start of the Children in Family Law Matters chapter, under the heading Reports and Assessments.
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:
- a party was interfering with the child's relationship with the other party, so that more time was required to restore the relationship,
- a party was interfering with and unreasonably limiting the time provided to the other person in an order or agreement,
- a child is older and able to spend more time away from a parent, or
- 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.
Resources and links
Legislation
Links
- Legal Services Society's Family Law website's information page "Court orders"
- See "Change an order or set aside an agreement made in BC" and "When can you change a final order?"
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 6, 2021. |
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 JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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