In family law proceedings, the parties frequently desire to change the court order regarding decision-making responsibility, parenting time, relocation of the children, child support, and spousal support. The variation provisions are given in section 17 of the Divorce Act and in section 37 of the Family Law Act and section 29 of the Children’s Law Reforms Act. Either parent or a party can seek a variation in final order if that parent or party can demonstrate a material change in the circumstances, that “if known at the time, would have likely have resulted in a different terms” (Willick v. Willick).
For the sake of discussion, I would rely here on the Divorce Act provisions regarding variation, although similar provisions are given in provincial legislation.
Section 17 of the Divorce Act provides: (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(a) a support order or any provision of one, on application by either or both former spouses;
(b) a parenting order or any provision of one, on application by
(i) either or both former spouses, or
(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
(c) a contact order or any provision of one, on application by a person to whom the order relates.
Variation of Parenting Order
Pursuant to section 17(5) of the Divorce Act, the court shall not vary a custody order on either parent or party’s application, unless the court is satisfied that there is a change in condition, means, needs or other circumstance of the child since the last custody order was made. A material change is one that “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way” (Gordon v. Goertz).
Will the Birth of a Sibling Qualify Material Change?
This issue was raised in Brown v. Kagan (Brown), 2019 ONSC 5033 and the court opined in paragraph 61, as follows:
“I do not mean to suggest that the birth of a sibling will always qualify as a material change in circumstances. Whether the birth of a sibling constitutes a material change is contextual, and can only be determined by examining the specific facts of each case and the precise terms of the parenting schedule sought to be varied: MacDonald v. MacDonald, 2014 ABCA 91, at paras. 6 and 12; Simmons v. Simmons, 2016 ABQB 479, at para. 37; Garland v. Brouwer, 2016 ONSC 5966, at para. 7.”
Child Support Variation
Pursuant to section 17(4) of the Divorce Act, before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
Is Self-induced Reduction of Income a Material Change?
The courts have found that a “self-created situation” cannot be considered a material change to vary child support obligation where the payor of the support relies on the loss of employment due to his/her reckless conduct of committing crimes.
Variation of Spousal Support
Pursuant to section 17(4.1) of the Divorce Act, before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of the either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
Relocation and Variation of Order
We have discussed this issue in detail in our Blog, which can be accessed by the following link:
Burden of Proof
The onus of establishing the material change in the circumstances is on the party seeking the variation in the order.
If you need help seeking a variation in the court order or an agreement or if you need help with your Motion to Change, please contact IQBAL LAW and we have proven skills and experience to handle your family law proceedings.