Family law issues when families change: When to return to family court

Family law issues when families change: When to return to family court

Families change over time — kids get older and move out, parents get new jobs, remarry, have more children, lose jobs, want or need to move. Any of these changes could mean a woman or her ex-partner may need to revise an existing family court order, which could involve a return to family court.

If a woman’s relationship with her former partner is going reasonably well and if she feels safe, she may be able to begin discussions about any changes she wants or respond to changes her ex wants on her own.

However, if this does not feel safe or comfortable, she may need to return to family court.

When you may have to return to family court

Talking to a lawyer is a good place to start whether a woman is negotiating with her former partner herself or planning to return to court. If you are assisting a woman in this situation, you should consider whether she qualifies a 2-hour family violence authorization form for her initial consultation with a lawyer. If not, perhaps you can direct her to the duty counsel lawyer at family court. Women in rural and remote regions of Ontario may be able to access a lawyer through the Luke’s Place Virtual Legal Clinic.

In the event the case is returning to court, whichever person is seeking the change will need to bring a Motion to Vary, in which that person explains to the court what change they want and why they think it is appropriate.

To be successful, the person has to be able to show the court that there has been a significant change in circumstances since the original order was made and that, if the change relates to arrangements for children, that it is in the best interests of the children.

For example:

  • A woman’s former partner wants to reduce the amount of child support he is paying because he has lost his job. If he can demonstrate to the court that his job loss is legitimate and he has made or is making sincere efforts to find new work, he will likely be successful, but if the woman has information that indicates he left his job voluntarily and could be working, this is important information for her to share with the court.
  • The woman wants to change the access arrangement so she can decide when her former partner sees the kids because over the past year he has missed more visits than not. She will need to provide the court with a detailed record of missed visits and her attempts to encourage the visits to take place.
  • The woman wants to sell the family home, which was not discussed in the court order, but her former partner does not want her to. She will need to convince the court of her reasons for this decision, including how it is in the best interests of the children if they currently reside in the family home.
  • One of the children is about to start university, and child support needs to be rearranged. The woman needs to be able to explain what the current arrangement is, why it won’t work and what is a good alternative.
  • A woman might also need to vary a court order for safety reasons. Perhaps she has started dating someone, and her former partner’s response has been to stalk and harass her. She may need to go to court to get a restraining order against him.

Moving with children

Moving with children will almost always create a challenge in cases where there has been a history of abuse. See our previous articles on arranging moves and managing long distance access.

Alternatively, a woman may be concerned that her former partner may try to remove the children from Canada.

It is difficult to protect against the illegal movement of children, but there are some steps that can be taken. A family court order that prohibits or places conditions on international travel and that requires either or both parents to surrender their travel documents is ideal. A woman can also ask the court to require that the children’s passports be deposited with the court.

She can contact the Canadian passport office to have a passport alert issued, which would create a “red flag” if anyone tried to apply for a passport for the child.

For more information about protecting children from being illegally removed from Canada, we encourage you to consult the federal government’s International Child Abduction: A Guidebook for Left Behind Parents as well as our own article on the Hague Convention.

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