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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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.
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 and Access==
==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 an order for custody or access:
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 meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
*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 the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
*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 inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
*This assessment is based on the findings of the judge who made the previous order and the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
*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.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.
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. (This requirement is repeated in both the Divorce Act and the Family Relations Act.) Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the matter was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the status quo.
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:
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 change is in the best interests of the children in the long run;
a custodial spouse has attempted to alienate the child against the other parent;
#the parent with the children's primary residence has attempted to alienate the children from the other parent;
a custodial spouse has repeatedly frustrated the non-custodial spouse's access to the child;
#the parent with the children's primary residence has repeatedly frustrated the other parent's access to the children;
a child has been apprehended by child protection workers;
#the child has been apprehended by child protection workers;
a child has been abused by the custodial parent; and,
#the child has been abused by the parent with the children's primary residence; and,
a mature child over the age of twelve or so has expressed a wish to live with the other parent.
#a mature child has expressed a wish to live with the other parent.
Note that the courts are unlikely to change custody where the children are happy in an existing stable and secure setting.
 
The courts are unlikely to change custody where the children are happy in an existing stable and secure setting.


==Changing Orders About Guardianship and Parental Responsibilities==
==Changing Orders About Guardianship and Parental Responsibilities==
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