Changing Orders in Family Matters: Difference between revisions
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Orders about child support mostly need to change because the payor's income has gone up or down, because the children have grown up and are no longer entitled to benefit from the payment of child support or because one or more of the children have left the recipient's home to live with the payor. | Orders about child support mostly need to change because the payor's income has gone up or down, because the children have grown up and are no longer entitled to benefit from the payment of child support or because one or more of the children have left the recipient's home to live with the payor. | ||
===''Divorce Act'' | ===''Divorce Act'' orders=== | ||
Under s. 5 of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the ''Divorce Act'' gives the court the authority to change, cancel or suspend orders for support made under that act. | Under [http://canlii.ca/t/7vbw#sec5 s. 5] of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily living in the province at the time the action started, no matter which province's courts made the original order. [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''Divorce Act'' gives the court the authority to change, cancel or suspend orders for support made under that act. | ||
Section 17 of the Divorce Act says this: | Section 17 of the Divorce Act says this: | ||
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This all boils down to these principles: | This all boils down to these principles: | ||
*a court can make an order changing a previous child support order if a change in circumstances has occurred since the order was made, | |||
*any new order for child support must be made according to the [[Child Support Guidelines]], | |||
*the court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines inappropriate, and | |||
*the court may also make an order for support different from the Guidelines if both spouses agree to the order and reasonable arrangements have been made for the support of the children. | |||
Before the Child Support Guidelines came into effect, an applicant had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances. | Before the [[Child Support Guidelines]] came into effect, an applicant had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances. | ||
Section 14 of the Guidelines defines a ''change in circumstances'' as follows: | [http://canlii.ca/t/80mh#sec14 Section 14] of the Guidelines defines a ''change in circumstances'' as follows: | ||
<blockquote><tt>For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:</tt></blockquote> | <blockquote><tt>For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:</tt></blockquote> | ||
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<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote> | ||
====Financial | ====Financial statements==== | ||
When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court | When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given in a ''Financial Statement'', [[Sample Supreme Court Forms (Family Law)|Form F8]] in the Supreme Court. The Provincial Court cannot issue orders under the ''[[Divorce Act]]''. | ||
*The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables. | *The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables. | ||
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These new Financial Statements 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 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. | ||
====Statutory | ====Statutory provisions==== | ||
These are the primary sections of the ''Divorce Act'' dealing with varying child support orders. | These are the primary sections of the ''[[Divorce Act]]'' dealing with varying child support orders. | ||
*s. 2: definitions | *s. 2: definitions | ||
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===''Family Law Act'' Orders=== | ===''Family Law Act'' Orders=== | ||
Section 152(2) of the ''Family Law Act'' gives a court the authority to cancel, vary or suspend an order for child support where: | Section 152(2) of the ''[[Family Law Act]]'' gives a court the authority to cancel, vary or suspend an order for child support where: | ||
<blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote> | <blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote> | ||
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<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote> | <blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote> | ||
This all boils down to the idea that the court can change an order for child support if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, reproduced above, since the last order or if new evidence is discovered since the order was made. | This all boils down to the idea that the court can change an order for child support if there has been a change of circumstances, as defined by [http://canlii.ca/en/ca/laws/regu/sor-97-175/latest/sor-97-175.html#sec14 s. 14] of the [[Child Support Guidelines]], reproduced above, since the last order or if new evidence is discovered since the order was made. | ||
====Financial | ====Financial statements==== | ||
When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court. | When an application to vary a child support order is brought, one or both parties will have to produce fresh financial information. This information is almost always given in a Financial Statement, [[Sample Supreme Court Forms (Family Law)|Form F8]] in the Supreme Court and [[Sample Provincial Court Forms (Family Law)|Form 4]] in the Provincial Court. | ||
*The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables. | *The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables. | ||
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These new Financial Statements 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 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. | ||
====Statutory | ====Statutory provisions==== | ||
These are the primary sections of the ''Family Law Act'' dealing with varying a child support order: | These are the primary sections of the ''[[Family Law Act]]'' dealing with varying a child support order: | ||
*s. 1: general definitions | *s. 1: general definitions | ||
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*s. 216: interim orders | *s. 216: interim orders | ||
==Spousal | ==Spousal support== | ||
A final order for spousal support is an order made following the trial of a court proceeding or made by the consent of the parties as a settlement of the proceeding. Changing an order is called ''varying'' an order. | A final order for spousal support is an order made following the trial of a court proceeding or made by the consent of the parties as a settlement of the proceeding. Changing an order is called ''varying'' an order. | ||
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In general, a final order is just that, final. Without an appeal, the final order represents the end of a court proceeding and can't be changed. This rule applies whether the order requires the payment of spousal support or rejects a party's claim for spousal support. | In general, a final order is just that, final. Without an appeal, the final order represents the end of a court proceeding and can't be changed. This rule applies whether the order requires the payment of spousal support or rejects a party's claim for spousal support. | ||
===Changing an | ===Changing an order refusing support=== | ||
It used to be the case that a claim for spousal support which was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for someone in financial need. | It used to be the case that a claim for spousal support which was dismissed in a final judgment was permanently dismissed, such that any future application for support could not proceed, no matter how things might have changed for someone in financial need. | ||
A | A 2003 judgment of the British Columbia Court of Appeal, ''[http://canlii.ca/t/5cdj Gill-Sager v. Sager]'', 2003 BCCA 46, has called into question just how "final" final orders about spousal support should be. In this case, the court issued a strong caution to trial judges against permanently dismissing a spouse's claim for support. Subsequent cases have interpreted this decision to mean that spousal support claims should never be permanently dismissed, only adjourned, so that it will always be open to a spouse to apply for spousal support later on. | ||
In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally'', in other words they should say that the issue is not decided. | In practice this means that final orders should not say that a claim for support is ''dismissed'' but is only ''adjourned generally'', in other words they should say that the issue is not decided. | ||
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A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in his or her financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered. | A party who seeks spousal support after a judgment dismissing support must be able to establish a significant change in his or her financial circumstances, such that if the change were known of at the time of trial, the judge would have made a different decision. For example, a party who develops a serious, disabling illness following trial — a trial held while the party was in perfect health — and can no longer hold a job, might be entitled to apply for spousal support when the illness is discovered. | ||
===Changing an | ===Changing an order allowing support=== | ||
When a party seeks to vary a final order for spousal support made under the ''Divorce Act'', he or she must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of '' | When a party seeks to vary a final order for spousal support made under the ''[[Divorce Act]]'', he or she must show that there has been a ''material change in circumstances'' affecting one or both of the parties. A material change is a significant change. In the 1996 case of ''[http://canlii.ca/t/1f0dj Tyler v. Tyler]'', 1996 CanLII 1190 (BCCA), the Court of Appeal said that a material change is one which is "substantial, unforeseen and of a continuing nature." In the 1995 case of ''[http://canlii.ca/t/1frh3 G. (L.) v. B. (G.)]'', [1995] 3 SCR 370 the Supreme Court of Canada said that a material change is one which, if known at the time of the original order, would have resulted in a different order being made. | ||
Section 17 of the ''Divorce Act'' says this: | [http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' says this: | ||
<blockquote><tt>(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.</tt></blockquote> | <blockquote><tt>(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.</tt></blockquote> | ||
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<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote> | ||
Section 167 of the ''Family Law Act'' is a bit broader and looks whether there is new evidence as well as a change in the circumstances of the recipient: | [http://canlii.ca/t/8q3k Section 167] of the ''[[Family Law Act]]'' is a bit broader and looks whether there is new evidence as well as a change in the circumstances of the recipient: | ||
<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote> | <blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote> | ||
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<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote> | ||
====Changing | ====Changing reviewable orders for support==== | ||
''Reviewable'' orders for spousal support are orders that impose an duty to pay spousal support without a particular end date, but allow the order to be reassessed every now and then. Reviewable orders will say something like this: | ''Reviewable'' orders for spousal support are orders that impose an duty to pay spousal support without a particular end date, but allow the order to be reassessed every now and then. Reviewable orders will say something like this: | ||
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<blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote> | <blockquote>"The Claimant shall pay spousal support to the Respondent in the amount of $______ per month, commencing on the first day of June 2012, and continuing on the first day of each and every month thereafter, subject to a review upon the Claimant remarrying or living in a marriage-like relationship with another person for a period of three years."</blockquote> | ||
Section 168 of the ''Family Law Act'' says this about reviewable orders: | [http://canlii.ca/t/8q3k Section 168] of the ''[[Family Law Act]]'' says this about reviewable orders: | ||
<blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote> | <blockquote><tt>(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for</tt></blockquote> | ||
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There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. | There is no need to establish that one or both of the parties have had a material change in circumstances at a review hearing. | ||
====Changing | ====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, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future. | 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, since there is an assumption that the parties to the order knew what they were doing when they agreed to the terms of the order, and knew what their circumstances were at the time of the order and what they were likely to be in the future. | ||
The test for changing consent orders for spousal support used to be the "material change" test, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" In the 2003 case of ''Miglin v. Miglin'', 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, referred to above. The question was "has there been a material change in the means and needs connected to the marriage of either spouse that, if known of at the time of the original order, would have resulted in a different order being made?" 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 order negotiated and entered into fairly, that is, was there an equality of bargaining power? | #Was the order negotiated and entered into fairly, that is, was there an equality of bargaining power? | ||
#If the circumstances that the order was entered into were reasonable, | #If the circumstances that the order was entered into were reasonable, then the court must consider whether the order met the objectives for spousal support set out in the legislation at the time it was made. | ||
#If the order did meet the objectives set out in the legislation, does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the legislation? | #If the order did meet the objectives set out in the legislation, does the order still reflect the original intention of the parties and does it continue to meet the objectives for spousal support set out in the legislation? | ||
In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the legislation. | In other words, a court asked to change a consent order for spousal support should first look at the circumstances under which the order was made. Was a party at an unfair advantage? Was a party pressured into agreeing to the order? Secondly, the court should consider whether the order met the criteria for spousal support set out in the Divorce Act. Thirdly, if the order passes the first two parts of the test, the court should look at whether the order continues to reflect the parties' intentions at the time the order was made, and whether the order continues to meet the criteria set out in the legislation. | ||
<!---HIDDEN | |||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
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* other chapters | * other chapters | ||
END HIDDEN---> | |||
==Page Resources and | ==Page Resources and links== | ||
===Legislation=== | ===Legislation=== | ||
*Supreme Court Act | * ''[[Family Law Act]]'' | ||
* | * ''[[Divorce Act]]'' | ||
* ''[http://canlii.ca/t/84d8 Supreme Court Act]'' | |||
* | * ''[http://canlii.ca/t/849w Provincial Court Act]'' | ||
* [http://canlii.ca/t/8mcr Supreme Court Family Rules] | |||
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules] | |||
===Links=== | ===Links=== | ||
* | * [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)] | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||