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

===The Divorce Act===

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:

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.

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:

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.

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.

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.

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.  

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:

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:

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:

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 which supports the allegations. Needs of the child assessments and views of the child reports are discussed in more detail in the section on [[Children in Family Law Matters#Reports and assessments | reports and assessments]] under the chapter page [[Children in Family Law Matters]].

Of course, parenting schedules can also be changed to increase the amount of time a person has with a child. Circumstances where this has happened include where :

*The parent is in a new relationship with someone from out of town,.

*the parent wants to be closer to family.