What is a motion to change?
What is a motion to change?
A motion to change is a court process where you can ask a judge to change a final court order about one or more of the following issues:
- Parenting time
- Decision-making authority
- Support payments related to an order made at least six months ago (unless permission was granted by a judge to return sooner)
- Restraining or non-harassment order
When is a motion to change appropriate?
A motion to change can be of critical importance because family structures, economic situations and dynamics change over time. If the woman and her ex-partner cannot agree to resolve the issues between themselves, they may need to return to court and seek a motion to change.
What circumstances would apply?
A motion to change can often be brought in the following circumstances:
- The support payor is making more money than they were when the order or agreement was made, and has not informed their former partner, has not provided updated financial information or has refused to consent to an increase in the amount of child support they are paying
- The support payor is making less money than they were when the order or agreement was made and the support recipient has refused to consent to a decrease in the amount of support to be paid
- The person receiving spousal support is now able to support themself
- The child has new educational needs such as attending post-secondary school
- The child might have new medical or therapeutic needs
- One party is seeking to relocate to another province or out of the country
- One party may be withholding the child despite a court order
While the above-mentioned list provides a few examples, the person seeking to bring a motion to change must be able to clearly demonstrate that a material change in circumstances has occurred.
What does material change in circumstance mean?
The change must be substantial, ongoing and, if it had been known at the time the court order was made, it would have likely resulted in a different order
Courts are required to consider the unique facts of every case and determine whether the change is significant and long lasting. Courts will also consider whether the person bringing the motion to change is doing so because they want to avoid their legal obligations. For example, an ex-partner may be vindictive and intentionally be under-employed or working cash jobs as a way to reduce the amount of spousal support he may need to pay as a way of punishing the woman for leaving him.
Are there special considerations when children are involved?
Where children are involved or at the centre of a motion to change, the courts must assess the best interests of the child including all the relevant circumstances relating to the child’s needs and the respective abilities of each parent to satisfy them at the time the motion to change is brought.
Children getting older is a normal part of life and, based on that fact alone, a court would not necessarily consider it to be a material change in circumstance; rather, it may be that the parent’s ability to care for the child has changed as well as the child’s needs from when the original court order was made. For example, one parent may have lost a job due to an unforeseen workplace accident and the child who may be over the age of 16 is working part-time and is able to contribute to their needs. A judge may alleviate some of the parent’s child support obligations if they are satisfied that the child’s financial situation is not precarious.
Can a party’s conduct play a factor in motions to change?
The parties’ behaviour can affect whether a motion to change is granted. Courts will consider:
- Whether one parent has consistently and intentionally withheld the child from the other parent for no real reason
- Whether one parent refuses to follow the parenting time schedule set out in the final court order
- Whether a parent who has joint decision-making authority over a child fails to disclose pertinent facts with respect to the child’s care such as a medical emergency or treatment to the other parent.
- Whether they have made any voluntary payments on account of arrears
- Whether they have cooperated with enforcement agencies in addressing the issue of child support
- Whether they have kept the recipient informed of the changes in their circumstances over time as those changes occurred
- Whether they complied with requests for financial disclosure
- Whether they demonstrated a willingness to support the child or are simply seeking to avoid their child support obligations
- Whether they failed to disclose a material change in circumstance to the recipient for an extended period of time
On a procedural level if the party does not agree to the change or if the party wants to ask the court to make an additional or different change to the final order or agreement, the party is required to serve and file a response to motion to change, whereas if the party agrees to the change or if the parties agree to a different change, a consent motion to change is required.
If a motion to change is brought unnecessarily (i.e. a material change in circumstances did not actually occur) a judge may order costs against the party who brought the motion to change. Similarly, if one person avoids responding to a motion to change or refuses to provide requested financial disclosure set out in a court order, a judge may also order costs in these circumstances.
Regardless of the circumstance, it is important to seek legal advice as judges ultimately have discretion to grant a motion to change or not depending on the facts of the case.
