MOTIONS TO CHANGE

How Can You Change to Final Order or Agreement?
This applies to changing:

• a final court order; or

• an agreement that was filed with the court for enforcement of support

 

To change such an order or agreement, you need an new order.  You cannot do this by an agreement with the other party, unless it is filed with the court and a judge makes an order based on it.

 

Common reasons for bringing a Motion to Change:

• you are unable to pay support as required (the Family Responsibility Office ("FRO") [see article] may be taking enforcement steps)

• you have reason to believe that the payor should be paying more support

• the child or the spouse is no longer entitled to support

• it is in the best interest of the child to change the parenting arrangements regarding the child

• the terms of the order or agreement need to be changed or clarified to ensure that the intent of the order or agreement is followed

 

To change an order or agreement, you must prove there must be a "material change in circumstances".   No change in circumstances, no change to the order or agreement.  Changing your mind or becoming unhappy with the order or agreement is not a "change in circumstances".

 

Generally, you cannot change the following:

• orders regarding property or the payment of money related to property

• lump sum amounts of support

• arrears of support fixed before or at the date of the order or agreement

• support accumulated prior to the last support order

 

What is the Process?
While there are similarities between a Motion to Change a Final Order and an Application for new relief, the paperwork is different:

• start the case with a Form 15:  Motion to Change Final Order or Agreement

• if you seek support, add a Form 13:  Financial Statement

• there are some additional documents depending on what you are seeking

Y

ou must provide a copy of the Order (or the Affidavit for Filing of a Separation Agreement) you are trying to change .  If it is from another court location, the copy of the order must be certified by the court.

 

How Can You Changing Temporary Orders?
To change a temporary order, you must bring a motion within the existing case. If an temporary order was made regarding an issue in a case, without any final order, the case may be still active. This could be true regardless of how much time has passed.

 

If a long time has passed, then a Case Conference [see article] should be held, before bringing the motion to change the temporary support (indeed, you may be able to resolve the matter at the case conference).

 

If the case is  in the Ontario Court of Justice, it will likely be necessary to bring a 14B Motion to obtain permission for a Case Conference.  In the Superior Court of Justice, you can bring the Case Conference without getting permission from a judge.

 

It is wise to put the same information that would go in a Form 15A Change Information in the Form 17 Case Conference Brief or a Form 14A Affidavit.

 

How Do You Set Aside A Final Order?

In certain cases, a judge may be convinced to set aside (i.e. cancel) a final order and resume the court case at the point before the order was made.  Usually this is requested when a party was not aware of the court case prior to the order being made.  (If you were aware of the case and did nothing, the order will not be set aside.)

 

Judges are normally very reluctant to set aside final orders.

 

For this to have any real chance of success:

• there should have been little delay between learning of the order and bringing the motion to set aside (if you delay very long, you can be treated as accepting the order)

• the party asking to set aside the order must have acted reasonably and in good faith throughout this case

 

Do You Need A Lawyer?
As always, get some good legal advice, so you know what you need to do and what the risks are.

Unlike many other court proceedings, you should provide full evidence in support of your claim in you first set of documents.  This includes information, documents, and calculation.  Unless it is a recent and simple change, preparing effective documents can be extremely challenging.  Consider hiring a lawyer to give advice, plan your case, and draft the documents.

 

If the case is more complicated or if income was imputed to you in the past, then having full representation by a lawyer is important.  To set aside an order you need full assistance from a lawyer.