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11.4 Changing Agreements or Orders

Resources:

For more information see JP Boyd: Changing Final Orders and Family Law in BC: How to change a family order if you agree or if you can't agree.

Work It Out

As you have already learned, the best way to settle family matters is for you and your former spouse to be able to work out a new agreement. There are formal ways to do change agreements and orders through the courts, but this should be your last resort.

Understand that over time, your situation in life is changing and that is true for your former spouse as well. Your agreement or order needs to reflect the current reality.

If you need to make a change, take some time to prepare, before communicating with your former spouse. Use the worksheets provided in Chapter 2 – Key Issues, to recalculate child support payments or spousal support, based on the new situation. Or, you may need a new solution for parenting arrangements. Write down your reasons for the change. Before you discuss the issue with your former spouse, you may wish to review the information in Chapter 3 – Preparing Yourself, so that you can communicate effectively and negotiate in the best interests of the children.

 

Go To Court

If you are not able to come to an agreement to change an existing agreement or court order, you can file an application and ask the court to work it for you. To change an order, you must get a new order. To change an agreement, you must obtain a court order to change the agreement.

To change an agreement or order, you need to provide information to the court about new circumstances. There must be something new that has happened for the court to revise the original agreement or order.

If the agreement or order was made according to the Divorce Act, you will need to apply to the Supreme Court. If the agreement or order was made according to the Family Law Act, you can apply to either the Provincial Court or Supreme Court. Depending on whether your order was made under the Family Law Act or the Divorce Act, the judge will use a test to determine if the order should be changed.

 

Family Law Act

    Type of order

    When will a court change, suspend, or terminate a court order?

Parenting arrangements
(allocation of parental responsibilities and parenting time)
(see section 47 of the Family Law Act)

If the court is satisfied that the child's needs or circumstances have changed since the order was made. This could include a change in the circumstances of another person involved, such as the parents.

Contact with a child
(section 60)

If the child's needs and circumstances have changed since the order was made. This could include a change in the circumstances of another person involved, such as the parent with contact.

Child support
(section 152)
  • If circumstances change according to the child support guidelines, usually because the payor's income has gone up or down and another amount of child support should be paid.
  • If you have important evidence that wasn't available before.
  • If financial information was missing and not discovered until after the order was made.

Spousal support
(section 167)
  • If the conditions, finances, needs, or other circumstances of either spouse have changed.
  • If you have important evidence that wasn't available before.
  • If financial information was missing and not discovered until after the order was made.

 

Divorce Act

(Section 17 of the Divorce Act governs all applications to change an order.)

    Type of order

    When will a court change, suspend, or terminate a court order?

Custody

If the conditions, finances, needs, or other circumstances of the child have changed. The court will consider the change only if it's in the best interest of the child.

Child support

If circumstances change according to the child support guidelines, usually because the payor's income has gone up or down and another amount of child support should be paid.

Spousal support

If the conditions, finances, needs, or other circumstances of either spouse have changed.

 

If your situation matches one of these you can apply to change a court order:

  • In Supreme Court -file a notice of application (Form F31) with an affidavit and, if needed, a financial statement (form F8).
  • In Provincial Court- For final orders file an application respecting existing orders or agreements (Form F2). For interim orders, file a notice of motion (Form F16). In either case, the document is filed in the registry where the order was made. If a financial statement (Form 4) is required it too must be filed.

The steps to changing court orders are identical to those of making an application for an interim order. Refer back to Chapter 9. 22 –Interim Applications to review the process.