What Is a Material Change in Circumstances in BC Family Law?

Many people hear that you need a "material change in circumstances" to change a family order. The phrase is common, but the Family Law Act uses different wording depending on the kind of order.

This article explains what the test is for parenting, child support and spousal support in British Columbia, with plain examples. Whether your facts meet the test depends on your situation, so a lawyer can confirm.

This article covers the law of British Columbia.

Why the test matters

A court order is meant to be stable. You usually cannot go back to court simply because you disagree with it. A change in circumstances is the gateway that allows the court to look at the order again.

In general, the Family Law Act allows a court to change, suspend or terminate an order if there has been a change in circumstances since the order was made. Interim orders can be changed on proof of a change in circumstances or new substantial evidence.

Parenting orders

For parenting arrangements, the court must be satisfied there has been a change in the needs or circumstances of the child since the order was made, including because of a change in another person's circumstances. Contact orders use the same test.

Examples might include a child starting school, a new health need, or a parent's work schedule changing in a way that affects the child. Whether any of these is enough depends on the facts. Any change is then assessed against the child's best interests.

Relocation is a special case. A prohibition on relocation is not, by itself, a change in circumstances for the purposes of section 47. Relocation orders are decided under section 69, which applies the best-interests factors plus relocation factors.

Child support orders

A court may change, suspend or terminate a child support order, prospectively or retroactively, if a change in circumstances as provided for in the child support guidelines has occurred since the order was made. Under the Federal Child Support Guidelines, where the amount includes a table-based determination, a change of circumstances is any change that would result in a different child support order or any provision of it. Otherwise, it is any change in the condition, means, needs or other circumstances of either spouse or an eligible child.

A change in a parent's means, such as their income, may be relevant, but whether a particular change is enough depends on the facts. There is also an exception: an order can be changed on substantial new evidence that was unavailable at the previous hearing, or where non-disclosure is discovered later, even without a guideline change in circumstances.

Spousal support orders

A court may change, suspend or terminate a spousal support order if there has been a change in the condition, means, needs or other circumstances of either spouse since the order was made, or on substantial new evidence or later-discovered non-disclosure.

There is an exception for orders that have ended. Once a fixed-term or event-based spousal support order has ended, support can be resumed only if the applicant proves economic hardship and that the changed circumstances would likely have produced a different order.

Divorce Act orders and what to do next

If your order was made under the Divorce Act, the test is in section 17. Child support needs a change of circumstances as provided for in the guidelines, and spousal support needs a change in the condition, means, needs or other circumstances of either former spouse. A variation order may be retroactive or prospective.

For parenting and contact orders under the Divorce Act, the court must find a change in the circumstances of the child, and it cannot consider conduct that could not have been considered when the original order was made. A former spouse's terminal illness or critical condition counts as a change in the child's circumstances, and the court must then vary the allocation of parenting time. A non-spouse parent, a person standing in the place of a parent or a person intending to do so may apply to vary a parenting order, and a person who is not a spouse needs leave of the court if the order does not relate to them.

If you have an agreement rather than a court order, you can vary a separation agreement by signing a new written agreement. A new agreement that changes a previous one revokes each changed part of the earlier one, and the unchanged remainder stays effective.

In Provincial Court, an application to change or cancel an order under the Family Law Act is made on Form 3 (Application About a Family Law Matter) with the schedule for the order type, and a copy of the order or agreement is attached. Procedure in the Supreme Court is different, so it is worth confirming which steps apply to you.

Timing can matter for support. A payor who applies promptly to change support may get a retroactive reduction of arrears, while one who waits risks arrears and interest continuing to accumulate.

• Identify which Act and court your order came from.
• Write down what changed and when.
• Collect proof, such as income records or medical documents.
• Do not stop paying or change arrangements on your own. Support under an order continues until a court changes it.
• Get legal advice about whether your change is enough and how to apply.

Frequently asked questions