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

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 have agreed to have the application heard here. However, if the child has deeper roots and greater social ties in the other province or territory, the court is likely to <span class="noglossary">transfer</span> the matter to be heard in the other province or territory.

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".

The general test under the ''[[Family Law Act]]'' to vary orders is at s. 215(1). It applies when there isn't a specific test required to vary a particular order, such as the way ss. 47 and 60 set out the required test to vary orders about parenting arrangements and contact. Since there's no specific test to vary orders for guardianship, the general test set out in s. 251(1) will apply:

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 <span class="noglossary">account</span> in considering the best interests of the child are set out at s. 37(2).

*The child has been abused by the parent with the children's primary residence.

People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of a child by exercising ''parental responsibilities''. Under s. 40(2) of the act, parental responsibilities are presumed to be shared by all guardians until an order or an agreement says otherwise, and s. 40(3) says:

Under s. 51(1) of the ''[[Family Law Act]]'', the court may make an order appointing someone as a guardian of a child or make an order ''terminating'' someone's guardianship of a child. This section doesn't say what the court should consider when terminating someone's guardianship. However, s.37 (1) says that:

Under ss. 47 and 60 of the ''[[Family Law Act]]'', the court may vary an order for parenting time or contact if it is satisfied that:

Before there is a change to a child’s residence that can reasonably be expected to have a significant impact on that child’s relationship with another guardian, the guardian seeking the change in residence must bring an application for an order respecting parenting time, pursuant to s. 45 of the ''Family Law Act''.

Section 46(2) of the ''Family Law Act'' sets out the test to determine whether there can be changes to a child’s residence: To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court

(a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location of the child's residence, and

(b) must not consider whether the guardian who is planning to move would do so without the child.

First, under s. 66, a guardian who plans a move, with or without the child, that will have a significant impact on the child's relationship with a guardian or other people with a significant role in the child's life must give written notice of the proposed move at least 60 days before the move, to all other ''guardians'' and ''persons with contact'' with the child. (The guardian who is moving can apply to court for an exception to this requirement.) The notice must state the place the guardian plans on moving to and the date of the move. This requirement applies whether a guardian is planning on moving with a child or by themselves.

Second, under s. 68, a guardian who objects to the proposed move must file an application in court to stop the move within 30 days of getting written notice of the move. The parties are required to try to resolve any disagreement about the move on their own, but this doesn't prevent a guardian from applying to stop the move. Only guardians can object; people with contact cannot. However, people with contact can make an application under section 59 of the ''Family Law Act'' or section 60 of the ''Family Law Act'' to seek an order or to change an existing order for contact, for the purpose of maintaining the relationship between the child and a person having contact with the child if the relocation occurs.

Third, if the parties can't resolve their differences about the move, then either guardian can apply to court for orders allowing or preventing the proposed move. There are different tests that the court will apply depending on whether the guardians have "substantially equal parenting time." The ''moving guardian'' must prove, under s. 69(4) that:

The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost equally. In that <span class="noglossary">case</span>, the moving guardian must prove, under s. 69(5) that:

The meaning of ''good faith'' is discussed at s. 69(6):

If the move is allowed, the objecting guardian may ask the court to vary the old arrangements for parenting time and, under s. 70(2), the court is required to "seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order."