Difference between revisions of "Changing Family Law Orders and Agreements Involving Children"

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Changing Family Law Orders and Agreements Involving Children (view source)

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==Introduction==
==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 by the court making an order which requires different parenting arrangements than those specified in the agreement.
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 simply 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. A parent who wishes to bring an application to vary an order or agreement must remember that variation applications are always about the children, not the parent.
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 Relations Act, and, if under the Family Relations Act, whether the order was made by the Supreme Court or the Provincial (Family) Court. The same general considerations that apply to varying an order apply to changing a separation agreement.
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===
===The Divorce Act===


Under s. 5 of the Divorce Act, the British Columbia Supreme Court has the jurisdiction to vary an 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 matter heard in British Columbia. 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.
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 of the act 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 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:


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 bests 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 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.</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>


(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.
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.
(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.


===The Family Law Act===
===The ''Family Law Act''===


Both the Supreme Court and the Provincial (Family) Court have the jurisdiction to vary orders for custody, access and guardianship under ss. 5 and 6 of the Family Relations Act. As a rule of thumb, variation applications 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 (Family) Court can generally only be varied by the Provincial (Family) Court.
====Varying Orders====


Section 20 of the act gives the court the authority to change or cancel an order where "circumstances have changed since the order was last made or varied." It is up to the applicant to show that circumstances have changed.
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 24 of the act sets out the test for the variation of custody, guardianship and access orders. This section provides, in part, as follows:
Section 47 sets out the test to vary orders about parenting arrangements:


(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:
<blockquote><tt>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.</tt></blockquote>
(a) the health and emotional well being of the child including any special needs for care and treatment;
 
(b) if appropriate, the views of the child;
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".
(c) the love, affection and similar ties that exist between the child and other persons;
 
(d) education and training for the child;
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:
(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.
 
(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.
<blockquote><tt>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.</tt></blockquote>
 
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:
 
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces that part of the agreement that is incorporated, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
<blockquote><tt>(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,</tt></blockquote>
<blockquote><blockquote><tt>(a) the order replaces the part of the agreement that provides differently for the same subject matter, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the remainder of the agreement remains effective.</tt></blockquote></blockquote>
 
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.


==Changing Orders About Custody and Access==
==Changing Orders About Custody and Access==
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