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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{{JP Boyd on Family Law TOC|expanded = children}}
{{JP Boyd on Family Law TOC|expanded = children}}
 
{{LSSbadge
|resourcetype = <br/> a fact sheet on
|link        = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change <br/>a final order]
}}


There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children can be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children.
There really is no such thing as an absolutely final order or agreement involving children. All orders and agreements involving children can be changed, but, in general, something new must have happened since the original order or agreement was made that affects the best interests of the children.


This page talks about changing orders for custody and access under the ''Divorce Act'' and about changing orders and agreements about parenting arrangements and contact under the ''Family Law Act''. It will also discuss relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province or country.
This page talks about changing orders for custody and access under the ''[[Divorce Act]]'' and about changing orders and agreements about parenting arrangements and contact under the ''[[Family Law Act]]''. It will also discuss relocation, a special problem that comes up when a guardian wants to move, usually with the children, to a different town, province or country.


==Introduction==
==Introduction==
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===The Divorce Act===
===The Divorce Act===


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.
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 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 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:
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<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>
<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>


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.
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.


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


The rules in the ''Family Law Act'' about varying orders and setting aside agreements are different.
The rules in the ''[[Family Law Act]]'' about varying orders and setting aside agreements are different.


====Varying Orders====
====Varying orders====


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.
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.
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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 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) 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:
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:


<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>
<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>
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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.
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====
====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:
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>(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>
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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==
==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 orders for custody or access made under the ''Divorce Act'':
A 1996 case of the Supreme Court of Canada called ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'', [1996] 2 SCR 27, 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 first prove that there has been 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.
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*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. 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.
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.
#the parent with the children's primary residence has attempted to alienate the children from the other parent;
*The parent with the children's primary residence has attempted to alienate the children from the other parent.
#the parent with the children's primary residence has repeatedly frustrated the other parent's access to the children;
*The parent with the children's primary residence has repeatedly frustrated the other parent's access to the children.
#the child has been apprehended by child protection workers;
*The child has been apprehended by child protection workers.
#the child has been abused by the parent with the children's primary residence; and,
*The child has been abused by the parent with the children's primary residence.
#a mature child has expressed a wish to live with the other parent.
*A mature child has expressed a wish to live with the other parent.


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 and Agreements about Guardianship and Parental Responsibilities==
==Changing orders and agreements about guardianship and parental responsibilities==


The ''Family Law Act'' has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person ''is'' a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, like aunts and uncles, grandparents and other people who have established a caring relationship with a child.  
The ''[[Family Law Act]]'' has rules about who is presumed to be a guardian. When someone is presumed to be a guardian, that person ''is'' a guardian, without the need for an order. The only people who must have an order making them a guardian are the people who don't fit into those presumptions, like aunts and uncles, grandparents and other people who have established a caring relationship with a child.  


People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of 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:
People who are guardians, whether by a court order or as a result of the presumptions of guardianship, manage the care and raising of 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:
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===Guardianship===
===Guardianship===


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" somone'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 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" somone'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:


<blockquote><tt>In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>
<blockquote><tt>In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.</tt></blockquote>
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<blockquote><tt>... 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>
<blockquote><tt>... 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>


In other words, to vary an order appointing a person as guardian, the person making the order, 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.
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.


===Parental Responsibilities===
===Parental responsibilities===


The ''Family Law Act'' provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:
The ''[[Family Law Act]]'' provides a test to vary orders about parental responsibilities and a test to set aside agreements about parental responsibilities. Section 44(4) talks about agreements:


<blockquote><tt>... the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>
<blockquote><tt>... the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child.</tt></blockquote>
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Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.
Under both tests, the court must also consider why the proposed result would or wouldn't be in the best interests of the child.


==Changing Orders and Agreements About Access, Parenting Time and Contact==
==Changing orders and agreements about access, parenting time and contact==


Orders and agreements about parenting schedules are most commonly varied because: one of the parties has been frustrating the schedule; a party is constantly late or cancels visits frequently; the child is older and is more able to spend more time with the visiting parent; a party has moved and the old parenting schedule is no longer convenient; or, the child wishes to see the visiting party more or less often.
Orders and agreements about parenting schedules are most commonly varied because: one of the parties has been frustrating the schedule; a party is constantly late or cancels visits frequently; the child is older and is more able to spend more time with the visiting parent; a party has moved and the old parenting schedule is no longer convenient; or, the child wishes to see the visiting party more or less often.


The case of ''Gordon v. Goertz'' also applies to changing access orders under the ''Divorce Act'': the person applying to change the order, 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, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.
The case of ''[http://canlii.ca/t/1fr99 Gordon v. Goertz]'' also applies to changing access orders under the ''Divorce Act'': 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, and, once this hurdle is crossed, the court will look at all of the circumstances before making a decision about access as if the matter was being heard for the first time, with no presumption in favour of how things used to be.


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


<blockquote><tt>... 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>
<blockquote><tt>... 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>
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<blockquote><tt>...satisfied that the agreement is not in the best interests of the child.</tt></blockquote>
<blockquote><tt>...satisfied that the agreement is not in the best interests of the child.</tt></blockquote>


When considering applications like these, both the ''Divorce Act'' and the ''Family Law Act'' require the court to consider the best interests of the child rather than the needs or interests of the parties.
When considering applications like these, both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court to consider the best interests of the child rather than the needs or interests of the parties.


===Vague Parenting Schedules===
===Vague parenting schedules===


Problems often crop up when an order or agreement says only that a parent will have "liberal and generous" time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule to be frustrated... what is "liberal and generous" time anyway? Who decides what is "liberal" and what is "generous"? Say an order or agreement says this:
Problems often crop up when an order or agreement says only that a parent will have "liberal and generous" time with a child, or sets a schedule that is too vague. In situations like this, it's too easy for a schedule to be frustrated... what is "liberal and generous" time anyway? Who decides what is "liberal" and what is "generous"? Say an order or agreement says this:
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Where there has been a history of difficulties, the court will generally be quite open to further specifying the terms of access.
Where there has been a history of difficulties, the court will generally be quite open to further specifying the terms of access.


===Reducing Time with a Child===
===Reducing time with a child===


Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:
Cases where the parenting schedule in an order or agreement has been varied to reduce a person's time with a child include in circumstances where:


#a party has moved far enough away as to make the original access schedule impossible to comply with;
*a party has moved far enough away as to make the original access schedule impossible to comply with,
#a mature child over the age of twelve or so has expressed a wish not to see the person;
*a mature child over the age of twelve or so has expressed a wish not to see the person,
#a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care;
*a party has suffered a mental or physical illness, such that the children's health and welfare are at risk in his or her care,
#the parties' relationship has worsened to the point that they can no longer cooperate;
*the parties' relationship has worsened to the point that they can no longer cooperate,
#a party has attempted to interfere with the child's relationship with the other party; and,
*a party has attempted to interfere with the child's relationship with the other party, and
#the party's time with the child is proving harmful to the child's mental or physical health and welfare.
*the party's time with the child is proving harmful to the child's mental or physical health and welfare.


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 a report which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.
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 a report which supports the allegations. Section 15 reports are discussed in more detail in the chapter Children > Custody in the discussion about the factors involved in making a custody order.
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