How to Change a Court Order in Saskatchewan Family Law

Orders are made at one point in time, but life moves on. A new job, a job loss, a move or a change in a child's needs can make an existing order a poor fit.

This article explains the general test for changing an order made under the Divorce Act and what steps usually follow. Details depend on your order, so a lawyer can confirm how it applies to you.

This article covers the law of Saskatchewan.

Orders can be changed, but not casually

A court may vary, rescind or suspend a support order or a parenting or contact order, prospectively or retroactively. To vary spousal support, the court must be satisfied there has been a change in the condition, means, needs or other circumstances of either former spouse, and to vary a parenting or contact order it must find a change in the circumstances of the child. How a change to child support works depends on your situation, so it is worth confirming with a lawyer.

In Saskatchewan, the words custody and access have been replaced since March 1, 2021 by decision-making responsibility and parenting time. Decision-making responsibility means responsibility for significant decisions about a child's well-being, including 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.

The Children's Law Act, 2020 sets out decision-making responsibility and parenting time for unmarried parents and for married parents not seeking divorce. This article focuses on the Divorce Act test, so if your order was made under a different statute, how a change works may differ and is worth confirming with a lawyer.

What must have changed

For parenting orders, relocation of a child is deemed to be a change in the child's circumstances. A former spouse's terminal illness or critical condition also counts. A relocation that a court has prohibited does not by itself count as a change.

Income changes and child support

Child support amounts are based on the guidelines. The presumptive amount is the table amount for the paying spouse's province plus any s. 7 special or extraordinary expenses. Income starts from the Total income on the T1 General tax form, adjusted under Schedule III, and the court may look at the last three years or impute income, for example for intentional under-employment.

Some situations work differently. Where each parent has at least 40% of parenting time, the amount is set under s. 9 using the tables for each parent, plus the increased costs of shared care and each parent's circumstances. Where the payor's income is over $150,000, the court can depart from the straight table amount, and it may also depart for undue hardship. Special or extraordinary expenses such as child care, health and education are shared in proportion to the spouses' incomes.

So a job change may matter, but the court may look at the whole picture rather than only your new figure.

Steps to apply

• Where an action already exists, an application must be filed at the judicial centre where the action was commenced.
• Family Law Division judges sit in Regina, Saskatoon and Prince Albert.
• Family proceedings are governed by Part 15 of the King's Bench Rules.
• Court documents must be served under Part 12 of The King's Bench Rules, and service can be proved by an affidavit of service in KB Form 12-15 when no acknowledgment is available.
• The family dispute resolution requirement applies to family matters coming to court anywhere in Saskatchewan, while Practice Directive #7 applies in Saskatoon and Regina.

The Divorce Act says that, to the extent appropriate, parties shall try to resolve matters through a family dispute resolution process. Since July 1, 2022, family law matters coming to court anywhere in Saskatchewan are required to attempt this by the close of pleadings before continuing with further court proceedings. A person can apply for an exemption where there has been interpersonal violence, the other parent has abducted a child, or there is other urgency.

If the dispute is about parenting, other steps may come up. A Saskatchewan judge may order a parenting assessment by a qualified social worker who does not work for either parent when parents cannot agree, and the report goes to the parents, their lawyers and the court. Parents who have not fully agreed on parenting must complete a parenting course, and the Parenting After Separation Program has two online courses, one standard and one for high-conflict families. A court may also order supervised parenting time, for example where there is a risk of the child being abducted.

Exact forms and fees for a variation application depend on your case, so confirm them with the court or a lawyer.

What to do next

• Get a copy of your current order and note any earlier variations.
• Gather tax returns and proof of the change, such as a termination letter or new contract.
• Write down what has changed for you or your child and when.
• Ask whether a dispute resolution attempt is needed before you go to court.
• Find out whether a parenting course applies to you if parenting is not fully agreed.
• Speak with a lawyer before filing, especially if the other side may disagree.

Frequently asked questions