Variation of Agreements or Court Orders in Ontario Family Law
Can I change my court order or agreement after it has been made?
The short answer is yes. Life circumstances often change after a family law agreement or court order has been finalized.
In Ontario, if you need to modify such arrangements, you may bring a “Motion to Change” or enter into negotiations to have an updated agreement. Common scenarios where a variation might be necessary include the support paying parent’s job loss, the support paying parent has increased income, a child’s changing needs, or relocation.
At Stephen Durbin and Associates, our experienced family lawyers help clients navigate this process to ensure fair and practical outcomes. This page provides an overview of variations of court orders or agreements pursuant to family law in Ontario, but it is not a substitute for personalized legal advice. If your situation has evolved, contact us to discuss how we can assist you.
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What is a Variation in Ontario Family Law?
A variation refers to the legal process of changing or ending a court order or a support agreement in family law matters. This could involve child support, spousal support, decision making (formerly known as “custody”), parenting time (formerly known as “access”), or restraining orders. Notably, interim and temporary orders can also be the subject of a variation; the order does not necessarily have to be a final order.
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Courts in Ontario recognize that family dynamics and financial situations can shift over time, however, changes are granted if there is evidence of a “material change in circumstances”. This refers to a substantial, unexpected change that would likely have resulted in different terms had it been known when the original order or agreement was made.
The process is governed by statutes like the Family Law Act (“FLA”), the Divorce Act (for married couples), and the Children’s Law Reform Act (“CLRA”).
Grounds for Seeking a Variation
To succeed in varying an order or agreement, you must demonstrate a material change in circumstances. This threshold, established by landmark Supreme Court of Canada decisions, ensures that final orders provide stability unless truly warranted. Examples of material changes include:
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- A substantial increase or decrease in the payor’s income, affecting support payments.
- A child reaching adulthood, completing education, or moving out independently.
- Changes in living arrangements, such as a child residing with the other parent.
- The recipient of spousal support achieving financial independence or entering a new relationship.
- Health issues or other unforeseen events impacting custody or access.
Under section 37 of the FLA or section 17 of the Divorce Act, the court will only vary an order if the change is substantial, ongoing, and not temporary.
For agreements incorporated into court orders, additional scrutiny applies to preserve the parties’ original intentions.
The Process for Varying an Agreement or Order
Starting a variation typically involves filing a “motion to change” in the court that issued the original order or, if applicable, under interjurisdictional rules. Here’s a simplified overview of the steps:
- Check for Assignees: If support payments are assigned to a social service agency (e.g., due to social assistance), notify them early.
- Gather Evidence: Collect proof of material change, such as financial statements, pay stubs, or medical records.
- File Forms: Use forms like Form 15 (Motion to Change), Form 15A (Change Information Form), and supporting affidavits. If both parties agree, a consent motion can streamline the process.
- Serve Documents: Deliver copies to the other party and file proof of service with the court.
- Attend Court: If uncontested, the court may issue an order without a hearing. If disputed, attend a case conference or hearing where a judge decides based on the best interests of any children involved.
For child-related variations, the court prioritizes the child’s best interests under section 24 of the CLRA. Retroactive changes to child support were limited, as per guidelines from cases like D.B.S. v. S.R.G. (2006 SCC 37). However, in Colucci v Colucci, 2021 SCC 24, the court clarified that when the party who is seeking to vary support has established a change in circumstances, there is an automatic presumption triggered, thereby resulting in support being varied back to a certain date. While Colucci did not do away with the factors from D.B.S. entirely, it indicated that discretion could be exercised by judges to move away from the presumptive timeline (that support could only be varied three years retroactively before notice of the change in circumstances was given).
Agreement on changes
If you and the other party agree on changes, negotiate a new agreement first (this can avoid court altogether). It is strongly recommended to seek legal representation to ensure enforceability of the agreement. Further, it is always recommended that you obtain independent legal advice from a family lawyer before finalizing any agreement so that you are properly advised of your rights and obligations pursuant to same. A family lawyer can also identify any concerns or potentially unfair parts of your agreement for you before you decide whether or not to execute it.
How Stephen Durbin and Associates Can Help
Navigating variation can be complex and emotional. There are myriad factors to be considered when seeking variation, and having proper legal advice and guidance ensures that parties’ rights are protected, and they understand their obligations pursuant to the agreement or order.
Our team at Stephen Durbin and Associates is here to provide you with compassionate and strategic advice to protect your rights and achieve the best outcome.
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