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This chapter will provide a brief introduction to changing orders involving children, and discuss the factors the court will consider in changing orders for custody, guardianship and access. It will also discuss mobility issues, the problems that crop up when a parent wants to move with the children to a new town, new province or new country. Introduction Changing an order is called "varying" an order. An order can only be changed by a new order. Changing an agreement is called "amending" an agreement. An agreement can be changed by new agreement, usually called an "addendum agreement," or by a court order which sets out different arrangements than those specified in the agreement. 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 simply because one parent is angry with or has a poor opinion of the other parent; something new must have happened that affects the child's best interests since the last order was made. A parent who wishes to bring an application to vary an order or agreement must remember that variation applications are always about the children, not the parent. The process for applying to vary an order will depend on whether the original order was made under the federal Divorce Act or the provincial Family Relations Act, and, if under the Family Relations Act, whether the order was made by the Supreme Court or the Provincial (Family) Court, and the considerations that apply to varying an order apply to changing a separation agreement. The Divorce Act Under s. 5 of the Divorce Act, the Supreme Court of this province has the jurisdiction to vary an 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 matter heard in British Columbia. 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 of the act 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. Since the Divorce Act applies only to spouses, only parents who are married to each other or were married to each other can make variation applications under the act. Unmarried parents cannot apply to change an order under the Divorce Act, they can only do that under the provincial Family Relations Act. Section 17 of the act sets out the test for the variation of custody and access orders, and the principle that it is in a child's bests interests to have maximum contact with each parent. This section provides, in part, as follows: (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. (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. 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. The Family Relations Act Both the Supreme Court and the Provincial (Family) Court have the jurisdiction to vary custody, access and guardianship orders, under ss. 5 and 6 of the Family Relations Act. As a rule of thumb, variation applications can only be brought to the court which made the original order, however while an order of the Supreme Court can only be varied by the Supreme Court, an order of the Provincial (Family) Court can be varied by both the Provincial (Family) Court and the Supreme Court. Section 20 of the Act gives the court the authority to change or cancel an order where "circumstances have changed since the order was last made or varied." It is up to the applicant to show that circumstances have changed. Section 24 of the act sets out the test for the variation of custody, guardianship and access orders. This section provides, in part, as follows: (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (a) the health and emotional well being of the child including any special needs for care and treatment;(b) if appropriate, the views of the child;(c) the love, affection and similar ties that exist between the child and other persons;(d) education and training for the child;(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. (2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child. Back to the top of this chapter. Changing Orders for 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 an order for custody or access:
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. This requirement is echoed by both the Divorce Act and the Family Relations Act. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the matter 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:
Note that the courts are unlikely to change custody where the children are happy in an existing stable and secure setting. Back to the top of this chapter. Changing Orders for Guardianship The court will vary an order or agreement which provides for guardianship when the terms of the order or agreement are not in the best interests of the child. In situations of sole custody and joint guardianship, the court may order a change to sole guardianship where the parties simply cannot get along well enough to share parenting decisions. In general, a change from joint to sole guardianship will be ordered where the parent's relationship has worsened to the point that they can no longer cooperate effectively in the best interests of the children. The court may also change an order for sole guardianship to an order for joint guardianship where the parent with sole guardianship has refused to keep the other parent involved in the child's life or has refused to keep the other parent up to date on important events in the child's life. In situations of sole custody and sole guardianship, guardianship may be changed when the order or agreement for custody is changed, that is, where custody changes from one parent to the other, or where the sole custody arrangement is changed to joint custody. Orders or agreements for joint guardianship might be changed if:
Orders or agreements for sole guardianship might be changed if:
Back to the top of this chapter. Changing Orders for Access The case Gordon v. Goertz, discussed above, also applies to changing access orders. 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 matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to custody as if the matter was being heard for the first time, with no presumption in favour of the status quo. Orders for access are most commonly varied because:
Another common problem arises when an access order says only that a parent will have "liberal and generous access" or sets an access schedule that is vague. In situations like this, it is too easy for access to be denied — exactly what is "liberal and generous" access? Who decides what is "liberal" and what is "generous?" The best solution is usually to be a lot more specific about when and how the access visits should occur. Say an order or agreement says this: "Sally will have access to the child from Friday to Sunday." When exactly does Sally's access start? When does it end? Who is to pick the child up and drop the child off? Is the Sunday the Sunday immediately following the Friday or the Sunday a week later? A better order or agreement would say: "Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. Sally will be responsible for picking the child up on Fridays and Bob will be responsible for picking the child up on Sundays." Even better would be an order or agreement that says: "Sally will have the child from Friday at 4:00pm or the end of the school day, whichever is earlier, to the following Sunday at 6:00pm, every other week. If the Friday is a statutory holiday or a school professional development date, Sally will have the child from Thursday at 4:00pm. If the Monday following the Sunday is a statutory holiday or a school professional development day, Sally will have the child until Monday at 6:00pm. "Sally will be responsible for picking the child up at the beginning of her access to the child and Bob will be responsible for picking the child up at the conclusion of Sally's access. "In the event that Sally is unable to care for the child during a scheduled access visit, Sally will give at least two days' notice to Frank. "On Fathers' Day, Sally's access to the child will be suspended from 10:00am to 2:00pm, when Bob will have the child. "Sally's access to the child will be suspended during the summer, winter and spring school holidays, during which periods the following holiday access schedule will prevail..." Where there has been a history of difficulties, the court will generally be quite open to further specifying the terms of access. Cases where an order for access has been varied to reduce the amount of access include circumstances such as:
Of course, orders for access can also be changed to increase the amount of time a non-custodial parent has with the child. Circumstances where this has happened include:
Back to the top of this chapter. Mobility Issues It often happens that a parent who has the children for most of the time, whether through a court order or a separation agreement, wishes to move out of town. The parent who wants to move generally wants to go because:
Normally, the parent on the other end of the stick doesn't want his or her children to move since any move out of the local area will impair that parent's ability to see the children, with the potential of ruining the parent-child relationship. This is especially true when a parent seeks to move to another province or another country. Even within British Columbia, a relatively short move from Richmond to Chilliwack, for example, can impair a parent's access. The quality of the children's relationship with both parents is the fundamental reason why a parent who wants to move must go to court to get permission to do so; permission from the court or the other parent should be obtained well in advance of moving day. Any move more than, say, a sixty-minute drive will necessarily have an impact on the time the other parent can spend with his or her children. That, of course, will have an impact on the amount of time the other parent can spend with the children which can potentially damage the children's relationship with that parent. Of course, any move that impacts on the other parent's access can constitute a breach of any order or agreement that deals with access. It is very difficult to say whether a parent will be allowed to move with the children or not. The case law is very contradictory on this issue, and the best than can be said, apart from pointing out some general principles, is that a parent with the children's primary residence has about a 60% chance of being allowed to do so, and that the principles established in Gordon v. Goertz will govern the court's analysis of the application. The court's primary concern when considering such an application is the best interests of the children in the long term. A longer trip to exercise access means not only less time with the children, but usually not being able to see them as often. Not being able to see the children as often, usually means that the bond between the children and that parent may weaken, and that the children will grow apart from that parent. The question, then, is whether or not this problem is offset by some other factor in favour of the move.
Some of the factors in favour of a move are these:
Some of the factors which might indicate that the move is a bad idea are these:
It is almost impossible to predict the result of an application to move. Because mobility issues are among the most hotly argued and difficult issues there are in family law, the assistance of a lawyer is highly recommended. Back to the top of this chapter. Site Navigation
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