Varying a Final Order

In family law, a final order is a court decision that resolves the issues in a family law case. Final orders can deal with matters such as child custody and access, child support, spousal support, and property division. However, circumstances can change after a final order has been made, and it may be necessary to vary or change the order to reflect those changes.

In British Columbia, a party can apply to vary a final order by filing an application with the court. The application must include the specific changes sought and the reasons why those changes are necessary. The party must also provide evidence to support their application.

Case law provides guidance on when and how final orders can be varied. In the case of Gordon v. Goertz, 1996 CanLII 191 (SCC), the reasons of the majority provide the parent applying for a change in the order must first meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. For that threshold to be met, the judge must be satisfied of:

1) a change in the condition, means, needs, or circumstances of the child or in the ability of the parents to meet the needs of the child;

2) which materially affects the child; and

3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

It is also important to note that the party seeking to vary the order must establish that the proposed variation is in the best interests of the child or children. In cases involving children, the court will consider the children’s welfare as the paramount consideration.

Spousal support is a common term in final orders that tends to be varied in the following years after entering into a final order. There is case law in which the courts emphasized that spousal support orders are not set in stone and can be varied in light of changes in the parties’ circumstances.
Overall, varying a final order in family law can be a complex and challenging process. It requires careful consideration of the specific circumstances and a thorough understanding of the legal requirements. By working with an experienced family law lawyer and relying on case law guidance, parties can ensure that they are able to effectively navigate the process of varying a final order and achieve a fair and just outcome.

To learn more or to discuss your specific situation, please call one of our experienced lawyers at 604 265 8400 or filling out the online contact form.

Written by Jason Kang

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