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

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.  

Both the Supreme Court and the Provincial Court have the jurisdiction to vary orders and set aside agreements for guardianship, parenting arrangements, and contact. However, the Order being varied must be from the court. ''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 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 sets out the test to vary orders about parenting arrangements:

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:

The legal test that the court must apply to set aside part of an agreement changes, depending on the subject 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.

Orders about guardianship and parental responsibilities can be varied by another order. Agreements about parental responsibilities can be changed if the parties make another order, or, if they can't agree, the court may set aside the agreement and replace it with an order about parental responsibilities.

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 to remove the person as guardian.

Where there has been a history of difficulties, the court will generally be prepared to further specifying the terms of access.

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 an evaluation or a needs of the child assessment that supports the allegations. Needs of the child assessments and views of the child reports are discussed in more detail in the first section in the [[Children]] chapter, under the heading "[[Children in Family Law Matters#Reports and assessments|reports and assessments]]".