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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 00:04, 16 July 2019
, 00:04, 16 July 2019→Changing consent orders for support
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====Changing consent orders for support==== | ====Changing consent orders for support==== | ||
A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about | A ''consent order'' is an order that the parties agree the court should make. As such, consent orders have a different status than orders that were argued about. There is an assumption that the parties to a consent order knew what they were doing when they agreed to the order, had a reasonable knowledge of their circumstances at the time, and could reasonably foresee how their circumstances might change in the future. | ||
The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted: | The test for changing consent orders for spousal support used to be the ''material change'' test, described above. The question was "has there been a material change in the means and needs of either spouse that is connected to the marriage, and which would have resulted in a different order being made had the change had been known of at the time of the original order?" In the 2003 case of ''[http://canlii.ca/t/1g5lh Miglin v. Miglin]'', [2003] 1 SCR 303, the Supreme Court of Canada decided that the material change test should no longer apply to changing agreements for support and described a three-step test to be used when deciding whether a change is warranted: | ||
#Was the agreement negotiated and entered into fairly | #Was the agreement negotiated and entered into fairly? (i.e. was there an equality of bargaining power?) | ||
#If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made. | #If the circumstances of the negotiation of the agreement were fair, then the court must consider whether the agreement met the objectives for spousal support described in the legislation at the time the agreement was made. | ||
#If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described | #If the agreement did meet the objectives set out in the legislation, does the agreement still reflect the original intention of the parties and does it continue to meet the objectives for spousal support described in the legislation? | ||
In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice? | In other words, a court asked to change a consent order for spousal support should first look at the circumstances in which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Was there sufficient financial disclosure for the party to make an informed decision? Did the parties have independent legal advice? | ||