How to Change a Parenting Order After Divorce in Saskatchewan

Children grow, parents move, jobs change and health changes. A parenting order that worked at the time of your divorce may stop fitting your family's life. If your order was made under the federal Divorce Act, the Act sets out when a court can change it.

This article explains the test for changing a parenting or contact order, the words used in Saskatchewan today, and the steps that usually come before you go back to court. It covers Divorce Act orders only. Orders made under other laws, and older orders that use the words custody and access, can work differently, so ask a lawyer about those.

This article covers the law of Saskatchewan.

What a court can do with an existing order

Under section 17(1) of the Divorce Act, a court may vary, rescind or suspend a support order or a parenting or contact order. It can do this prospectively, which means going forward, or retroactively, which means back in time.

In plain words, varying changes the terms, rescinding cancels the order, and suspending pauses it. Whether a court will do any of these in your case depends on the facts, including the test below.

The test: a change in the child's circumstances

To change a parenting or contact order, the court must find a change in the circumstances of the child (s. 17(5)). Relocation of a child is deemed to be such a change (s. 17(5.2)).

• A former spouse's terminal illness or critical condition counts as a change in the child's circumstances (s. 17(5.1)).
• A relocation that a court has prohibited does not, by itself, count as a change (s. 17(5.3)).
• The test is about the child's circumstances, so a change that only affects a parent may not be enough on its own. A lawyer can tell you how this applies to your situation.

The words used now: decision-making responsibility and parenting time

The Divorce Act defines decision-making responsibility as responsibility for significant decisions about a child's well-being. This includes health, education, culture, language, religion and spirituality, and significant extra-curricular activities.

Parenting time is the time a child spends in the care of a person, whether or not the child is physically with that person the whole time. It is separate from decision-making responsibility.

Saskatchewan has used decision-making responsibility in place of custody, and parenting time in place of access, since March 1, 2021. Knowing which is which helps you work out what part of your order you want changed.

Steps before going back to court in Saskatchewan

The Divorce Act says that, to the extent appropriate, parties shall try to resolve matters that may be the subject of an order through a family dispute resolution process. A legal adviser must encourage clients to do so unless it is clearly inappropriate.

In Saskatchewan, since July 1, 2022, family law matters coming to court are required to attempt a family dispute resolution process by the close of pleadings before continuing with further court proceedings. You can apply to the court for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency.

• Family mediation by recognized family mediators is dealt with in section 7-4 of The King's Bench Act, 2023.
• In Saskatoon and Regina, Family Practice Directive #7 requires a judicial case conference before certain chambers applications. It lists compliance with the s. 7-4 dispute resolution requirement among the pre-conditions to seeking an order.
• Parents who have not fully agreed on parenting must complete a parenting course. The Parenting After Separation Program has two online courses, one standard and one for high-conflict families, in English and French.

If you and the other parent still cannot agree, a judge may order a parenting assessment by a qualified social worker who does not work for either parent. The report goes to the parents, their lawyers and the court.

What to do next

Where an action already exists, an application must be filed at the judicial centre where that action was commenced. For your divorce, that is generally where the original case started.

• Find your current order and note exactly which terms you want changed.
• Write down what has changed for your child and when.
• Consider whether mediation or another dispute resolution process could work, and whether you may qualify for an exemption.
• Check whether the parenting course applies to you.
• Speak with a lawyer about your chances and about filing at the right judicial centre.

Frequently asked questions