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What is a motion to change, and how is it used?

In Ontario, Canada, a motion to change is a legal process used to request a modification or variation of an existing court order or agreement. It provides a mechanism for individuals to seek changes to orders relating to child custody (Decision-making responsibility), access, child support, spousal support, or any other family law matter.

This article will explore what a motion to change is and how it is used in Ontario, including the process involved and the considerations to be aware of.

Definition and Purpose

A motion to change is a formal request made to the court to modify or vary an existing court order or agreement. The purpose of this process is to seek changes to the terms of a previous order or agreement when there has been a significant change in circumstances that justifies the requested modification.

It allows individuals to adapt to new circumstances or address issues that have arisen since the original order or agreement was made.

Grounds for a Motion to Change

To bring a successful motion to change in Ontario, the requesting party must demonstrate that there has been a material change in circumstances since the original order or agreement was made. The change must be significant and relate directly to the issue being addressed in the motion.

For example, a change in income, relocation, or the child’s best interests could potentially qualify as grounds for a motion to change.

Filing and Serving the Motion

The process begins by preparing and filing the necessary legal documents with the court. This includes a Notice of Motion to Change, an Affidavit outlining the change in circumstances, and any supporting documentation.

Once the documents are filed, they must be served on the other party involved in the case, giving them notice of the motion and an opportunity to respond.

Response and Case Conference

After being served with the motion, the responding party has the opportunity to file a Response and potentially cross-motion if they wish to request changes of their own.

A Case Conference may be scheduled to facilitate discussion between the parties and their lawyers, with the goal of encouraging settlement and narrowing the issues in dispute. If the matter is not resolved at the Case Conference, further steps in the process will be determined.

Settlement Discussions and Negotiation

Following the Case Conference, parties are encouraged to engage in settlement discussions and negotiation. This can involve direct communication between the parties, participation in mediation, or negotiation through their respective lawyers. The goal is to reach a mutually agreeable resolution without the need for a formal court hearing.

Court Hearing and Decision

If a resolution cannot be reached through settlement agreement discussions, the matter may proceed to a court hearing. At the hearing, both parties present their arguments, evidence, and legal submissions to support their positions.

The judge will then consider the arguments and make a decision on the requested modifications, taking into account the best interests of the child and the relevant legal principles.

Implementation and Enforcement

Once the court has made a decision regarding the motion to change, the successful party must ensure the order is implemented. This may involve updating custody arrangements, modifying support obligations, or making other necessary adjustments.

Non-compliance with the court’s decision can have legal consequences, including enforcement measures such as fines, asset seizure, or contempt of court proceedings.