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What is a Motion to Change in family law in Ontario?

In Ontario, family law matters are governed by the Family Law Act and the Children’s Law Reform Act. These laws provide a framework for resolving disputes between family members, including issues related to child custody (decision-making responsibility), children support, and access, as well as property division and spousal support.

However, even after a court order has been made, circumstances may change, requiring a modification to the original court order. In such cases, a party may bring a “motion to change” before the court. This legal procedure allows parties to seek a change to a previous agreement based on a material change in circumstances.

Grounds for Motion to Change

A motion to change can be brought when there has been a material change in circumstances since the original order was made. Grounds of material changes in circumstances include changes in income, employment status, health, or a relocation. The change must be significant enough to warrant a modification of the existing order or agreement.

Material Change in Circumstances

The term “material change in circumstances” can be subjective, and it is up to the court to determine whether a change is significant enough to warrant a modification. The change must be more than temporary and must be related to the issue in dispute.

For example, a small increase in income may not be sufficient to justify a change in child support payments, but a significant decrease in income or loss of a job could be grounds for a modification.

Types of Orders and Agreements that can be Changed

The types of orders and agreements that can be changed includes child custody, access, child support, spousal support, property division orders or separation agreements. It is important to note that not all orders can be modified. For example, property division orders are generally final and cannot be changed, except in rare circumstances.

Procedure for Filing a Motion to Change

To file a motion to change, the party seeking the modification must prepare and file a sworn affidavit outlining the material change in circumstances and the relief sought. The party must also serve the other party with the motion and supporting documents.

Once the motion is filed, a court date will be set for a hearing. It is important to follow the proper procedure when filing a motion to change, as failure to do so can result in the dismissal of the motion.

Response to a Motion to Change

The other party has the opportunity to respond to the motion by filing a responding affidavit and serving it on the party who brought the motion. The responding affidavit should address the material change in circumstances and any reasons why the existing agreement should not be modified. The responding party may also bring a cross-motion if they wish to seek their own modifications to the existing order.

Factors Considered by the Court

When considering a motion to change, the court will consider the best interests of the child (if applicable), any relevant legislation, and the evidence presented by both parties. The court will also consider the original agreement and any previous court orders.

The court may also consider the conduct of the parties, particularly if it is relevant to the material change in circumstances. The court’s primary focus is on ensuring that the modification is in the best interests of child and that it is fair to both parties.

Remedies Available to the Parties

If the court grants the motion to change, it may modify the existing agreement to reflect the new circumstances. The court may also order a variation in support payments or a change in custody &access arrangements.

If the court denies the motion to change, the original agreement will remain in place. In some cases, the court may also order costs against one party or the other. It is important to note that the court’s decision is final and binding, and the parties must comply with the new order.