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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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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 section 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 | This section 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 also discusses 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 spouse has a support network of family and friends at the new home. | *The spouse has a support network of family and friends at the new home. | ||
*There is some benefit at the new home not available at the old home, like better schools or medical programs. | *There is some benefit at the new home not available at the old home, like better schools or medical programs. | ||
*The spouses have resources available to them | *The spouses have resources available to them that will allow the other spouse to visit the children frequently, like a lot of money or being an employee of an airline. | ||
*The children aren't particularly close to or have no relationship with the spouse who will be staying behind. | *The children aren't particularly close to or have no relationship with the spouse who will be staying behind. | ||
*The children are performing poorly in their present setting, and will do better in the new one. | *The children are performing poorly in their present setting, and will do better in the new one. | ||
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*The move will damage or terminate the other spouse's relationship with the children. | *The move will damage or terminate the other spouse's relationship with the children. | ||
*The reason for the move is to alienate the children from the other spouse. | *The reason for the move is to alienate the children from the other spouse. | ||
*The parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship. | *The parent seeking the move has no particular ties to the destination, or the move is proposed solely for that spouse to be in a new relationship. | ||
*There is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday. | *There is no way to balance the effect of the move with more extended time with the other spouse, such as extended summer access, or access over the whole of the winter holiday. | ||
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===The rules under the ''Family Law Act''=== | ===The rules under the ''Family Law Act''=== | ||
The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating and a new test to determine whether a guardian should relocate if another guardian objects. Here's how it works | The situation is much different under the ''[[Family Law Act]]''. One of the most important changes this law has introduced are new legal obligations for guardians who are planning on relocating and a new test to determine whether a guardian should relocate if another guardian objects. | ||
Here's how it works: | |||
First, under s. 66, a ''guardian'' who plans a move 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 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 him- or herself. | First, under s. 66, a ''guardian'' who plans a move 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 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 him- or herself. | ||
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 | 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. | ||
Third, if the parties can't resolve their views about the move, the ''moving guardian'' must prove, under s. 69(4) that: | Third, if the parties can't resolve their views about the move, the ''moving guardian'' must prove, under s. 69(4) that: | ||
#he or she has proposed to move "in good faith", and | #he or she has proposed to move "in good faith", and | ||
#he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and | #he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life. | ||
If the moving guardian can do this, the move is presumed to be in the child's best interests unless another guardian can convince the court otherwise. | If the moving guardian can do this, the move is presumed to be in the child's best interests unless another guardian can convince the court otherwise. | ||
The test is a bit different if the moving guardian and the objecting guardian share the child's time equally or almost | 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 case, the ''moving guardian'' must prove, under s. 69(5) that: | ||
#he or she has proposed to move "in good faith", | #he or she has proposed to move "in good faith", | ||
#he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and | #he or she has proposed "reasonable and workable" arrangements to preserve the child's relationships with other guardians and persons with significant roles in the child's life, and | ||
#the move is in the child's best interests. | #the move is in the child's best interests. | ||
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<blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(d) any restrictions on relocation contained in a written agreement or an order.</tt></blockquote></blockquote> | ||
Now, 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" | Now, 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." | ||
Although a person with contact lacks the ability to apply to stop the moving guardian from relocating, he or she may apply under s. 67(2) for an order for contact or to vary an order for contact "for the purpose of maintaining the relationship between the child and a person having contact with the child". | Although a person with contact lacks the ability to apply to stop the moving guardian from relocating, he or she may apply under s. 67(2) for an order for contact or to vary an order for contact "for the purpose of maintaining the relationship between the child and a person having contact with the child". | ||
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* <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | * <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | ||
END HIDDEN---> | END HIDDEN---> | ||
== | ==Resources and links== | ||
===Legislation=== | ===Legislation=== | ||