Variations of Prior Orders and Agreements

A final order that is made under either the Family Law Act or the Divorce Act can be varied if the court finds there is a material change in circumstances. This means if the material change(s) had been known at the time of the order, then the award or agreement would likely have resulted in a different order. Below are a few examples of the kinds of orders that can be changed.

Firstly, orders concerning custody and access, when there is a material change in circumstance, one or both of the parties can apply for a motion to change. Section 17 of the Divorce Act and section 29 of the Children’s Law Reform Act contain the variation provision when bringing a motion to change. Therefore, the applicant can only vary the original order if they can demonstrate:

  • A material change of circumstance has occurred that was not reasonably foreseeable at the time of the original order; and
  • A change in the custody or access provisions is in the child’s best interests.

An important note is that in March 2021, the terms custody and access have been changed in all legislation that deals with children to parenting time (access) and decision-making reasonability (custody).

Secondly, orders concerning child support may be varied when there is a material change in circumstance. A final order under the Divorce Act or the Family Law Act can be varied if the applicant can demonstrate a change in circumstance that would have likely resulted in a different order if known at the time. The variation must be sought and granted in the court against the original order. Additionally, suppose a support order has been assigned to the Family Responsibility Office or like organization. In that case, the party requesting the motion to change must serve the organization as if they are a proper party. If you are unsure if your order is assigned, your lawyer will know the required inquires to be made.

Thirdly, spousal support orders can be varied if there is an existing order and a material change of circumstance. Section 17 of the Divorce Act and section 37 of the Family Law Act govern variation of spousal support agreements. The length of the support agreement determines if you can bring a variation order. A spousal support order can be indefinite or time-limited. For example, the courts have the discretion to vary a time-limited order if it is evident the payee will become self-sufficient in a specified period.

Furthermore, under the Divorce Act, if the time limit has expired, the standard to review the order is higher. Therefore the applicant must prove that there has been a material change in circumstance AND ongoing economic hardship. The court also has the discretion to dismiss a previous claim of spousal support.

Finally, a party can bring a motion to challenge or override any of the domestic contracts (discussed in detail under Domestic Contracts). Under section 56 of the Family Law Act, it lists common ground on which a party can challenge a domestic contract, either in whole or in part. For example:

  • If a party fails to disclose a significant asset or debt in existence when the contract was formed;
  • If a party fails to understand the nature and consequences of the agreement; and
  • Ensuring that the opposing party obtains independent legal advice will prevent this ground for challenge
  • Any other ground upon which an ordinary contract may be attacked;
  • This could include fraud (e.g., non-disclosure), duress or undue influence. The Supreme Court of Canada affirmed this ground for a challenge in 2004, outlining the two elements needed when proving the unconscionability of a term. Firstly if the term is unfavourable to the applicant and secondly if the term was drafted by praying on the other party’s weakness.

However, even if one of the grounds listed is proven, it is the sole discretion of the court to set aside or vary a domestic contract. An important note to any couple drafting a domestic contract is, for best practice to prevent a future challenge – to ensure you fulfil your positive duty to make full, fair and frank financial disclosure, even if it is not requested directly.

Why Choose Us?

At Bickhram Litigation, we understand entering back into the family law courts to vary an order can be daunting and emotionally draining. Our lawyers have a great deal of experience helping clients bring and litigate these matters. We provide sound legal advice and the support you need to make this challenging time a little less strenuous for our clients and their families. For more information on varying Final Order proceedings and litigation, please get in touch with us for a complimentary consultation.

 

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