Motion To Change And The Role Of Material Change Test In Motion To Change Proceedings

Resolving family issues after a divorce or separation can be ponderous and time-consuming. Sometimes due to changes in the dynamics of family structures, you may require an amendment of a court order that has already been served. These alterations may encompass matters of change in spousal support and child support, etc. However, each case goes on a case-to-case basis and is dependent on the circumstances of the individual case.

This article will highlight how a motion to change can be appropriate in terms of support or parenting.

What Is A Motion To Change?

The court process is utilized in order to modify the provisions of an existing court order regarding Parenting time, Decision-making responsibility, Support payments, and restraining or non-harassment orders. A variation is another name for a motion to change. A motion to change is filed when two parties cannot settle on how to amend the provisions of the previous court order.

The Criteria Of “Material Change” In The Motion To Change Proceedings

A motion to change will always proceed whenever there is a material change in the ongoing circumstances of the parties. It is pertinent to note that a motion to change is not the retrial of the initial case. Whenever the ability to comply with the existing court order cannot be met, the parties can file a motion to change.

Therefore, material change means a significant alteration in the facts and conditions of the child or the parent’s ability that can substantially affect the child or a change that was not radically foreseen or comprehended by the court while issuing the initial court order.

Under section 17 of the Divorce Act, section 29 of the Children’s Law Reforms Act and section 37 of the Family Law Act, provisions for variation to court orders are provided. The burden of proof lies on the party who is seeking modification in the court order.

As per Willick v. Willick, a parent or party may request a variation in the final decision if a parent or party can show that there has been a major change in the circumstances that “if understood at the time might well have probably ended up in a different term.”

Common Circumstances With Material Change

There could be a number of circumstances where material change can be demonstrated. Some common circumstances include:

• The support payer has not told their ex-spouse of their increased income, has not updated their financial records, or has refused to agree to an increase in the amount of child support they are now paying.
• The person entitled to spousal support previously is now independent enough to live on his/her own.
• The spouses can also apply for a motion to change where they have previously agreed on a joint parenting arrangement, but due to growing conflicts between the spouses, the schedule of joint parenting is no more working.
• There are new children’s educational or recreational needs.
• One spouse is planning to relocate the child to another province without the consent of the other etc.

Note: Please be advised that it is a non-exhaustive list of circumstances for the filing of a motion to change. For a motion to change to succeed, material change must be demonstrated in the ongoing circumstances of the case.

Other Essentials Of Motion To Change 

Where children are involved, motions to change heavily rely on the “best interests of the child test” to override the existing court order. Therefore, the conduct of the parties is also of paramount significance in the motion to change.

When the party demands a variation and the other party agrees to the motion claim filed, a consent motion to change plays its part. However, if the next party does not concur with the claim of the party that requires modification in the court order, then the party is required to file a response to the motion to change. Also, the absence of material change in the circumstances is an insufficient basis for the process of motion to change, and costs can be imposed on the party who unnecessarily brings motion to change.

We Can Guide You!

Get in touch with us if you are thinking to file for a motion to change in your spousal or child support, parenting, or restraining order. Ayaz Mehdi Professional Corporation has family lawyers who can make the entire process of motion to change quick and hassle-free.

Disclaimer:  Kindly note that sending or receiving information through this site does not establish a solicitor-client relationship. Legal matters are fact-specific, and the law is variably changing. The views expressed and the content provided on this blog are general guidelines and cannot substitute for proper legal advice. Schedule your legal consultation by clicking here: Let’s meet!