Where Do I Go To Change My Order? - 'Variations'

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If you have a court order that you want to apply to change, the same basic rules around jurisdiction apply as if you have never had an order before. Changing an order is also called 'varying' an order.

Where you file your court application will depend on what issue you are applying to deal with, and where you, the other party, and perhaps the children, live. It may also depend on whether or not you were divorced from the other party. The Supreme Court (Family Division) and the Family Court operate using different sets of court rules, and may view jurisdiction differently.

Note that if you have a final order dealing with property, pensions, or debts, you probably cannot change that order. Usually, once these issues are finalized in an order, you cannot change them afterward. If you have an order for property, pensions, or debts that you want to try to have changed, you should speak to a lawyer for advice.

For a variation application - an application to change a court order - you must be able to show that there has been a material change in circumstances.

Click here for a guide to making a variation application. This guide includes information, instruction, and forms links.

For contact information for the Nova Scotia courts, click here.

 

1. What is a ‘material change in circumstances’?

A material change in circumstances, sometimes called a ‘substantial’ change in circumstances, means that something important has changed in your situation, or your ex-partner’s or children’s situations, since your last order was made. As a result of this change, you feel you need to update your order. The change needs to be substantial, and not just a minor change.

Examples of a substantial change in circumstances could include:

For applications to change child support:

  • your income may have changed
    • you lost your job, or are earning more or less money than you were when the order was put in place
  • the child is no longer dependent
    • they are grown, finished school, and living on their own, supporting themselves

For applications to change child custody, parenting time, or parenting arrangements:

  • the child is living with a different parent now, or
  • one of the parents has moved away, affecting the visitation arrangements

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2. What is ‘jurisdiction’?

When a court has jurisdiction, this means that they have the right to deal with the particular application being filed. There are rules and laws that tell a court which applications they can deal with, and which ones they cannot deal with.

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3. Where do I apply to change my custody or parenting order?

Custody and parenting issues usually have to be dealt with in the court nearest to where the children are living. These issues are dealt with in Family Court, or in the Supreme Court (Family Divisions) if the children live in Halifax or Cape Breton.

If your children do not live in Nova Scotia, you will probably have to contact the court where they are living to find out how to make an application there.

If you first addressed custody and access as part of a divorce proceeding, you probably dealt with this issue wherever the divorce was filed. If your divorce is now final, and you are applying to change the divorce order for custody or access, you will likely have to make that application wherever the children are living now.

For more information about custody and parenting arrangements, click here.

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4. Where do I apply to change my child or spousal support order?

Jurisdiction for support issues can depend on where you live, where the other party is living, where your child is living, and whether you were ever divorced from the other person. Figuring out jurisdiction for these issues can get tricky, and you should speak with a lawyer or court staff for help.

If both you and the other parent live in Nova Scotia, you can contact the court nearest to you to start the court process, or you may have to contact the court where the other parent is living for a child support issue, if the children also live there.

If you are living in Nova Scotia, and the other person lives outside of Nova Scotia, you may have to use the ISO process. ISO stands for the Nova Scotia Interjurisdictional Support Orders (ISO) Act. This is the law that governs the process used for getting and changing (‘varying’) support orders involving Nova Scotians and parties who live in other jurisdictions, where provincial or territorial laws (not the federal Divorce Act) are being applied. If you are divorced from the other person (or are in the middle of a divorce proceeding), you probably will not use the ISO process.

To start an application under ISO, you must complete and swear a support application before a Commissioner of Oaths or a notary, where required. You may want to consider having your documents notarized in any event, just to be on the safe side. You should use standard ISO forms for your application. ISO forms are available at the court near you, or here.

You may not need to use the ISO process if the other party will consent to deal with the issue in your jurisdiction, or if you are willing to deal with it in theirs, or if both of you reach agreement on the issue, and have the order drafted by a lawyer.

If you first addressed support issues as part of a divorce proceeding, you probably dealt with this issue wherever the divorce was filed. If your divorce is now final, and you are applying to change the divorce order for support, you may be able to make this application from the court where you now live, or you may have to make it where your children are living, if you are dealing with child support. You should speak with a lawyer for advice on these issues.

For more information about child support, click here.

For more information about spousal support, click here.

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5. Once I figure out where to file my application, how do I start the process?

You can start your application through a lawyer, either one that you hire privately (retain), or get assigned to you through Legal Aid, if you qualify.

If you do not have a lawyer, you can start most court applications yourself by contacting the appropriate court, and asking what processes they have for starting an application. Many courts, like the Family Court and Supreme Court (Family Division), will have an intake process, where you can get help from a court officer to start your application.

For contact information for the Nova Scotia courts, click here.

Many forms for starting applications are available online, as well. You should get advice from a lawyer or speak with court staff to make sure you are filing the right documents for your case.

You can also use this guide to help you. The guide includes information, instruction, and forms links. 

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6. What is a 'retroactive' application?
A retroactive application is one where the relief being requested is back-dated.
 
For example, if you have a child support order and recently found out that the paying parent got a large pay increase 2 years ago but did not tell you, you may apply to the court for a change in child support, going back those 2 years. This is called a retroactive child support variation.
 
Generally, if you are making a retroactive application, you can ask for the change as far back as the most recent court order that dealt with the same issue. Whether or not the court will grant a retroactive order for some or all of the time you are asking for will depend on your situation.

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7. How do I make a retroactive variation application?

If you are making a retroactive variation application, you must note this in 2 places in your documents:

  1. On your Notice of Variation Application
  2. In your affidavit

In the affidavit, make sure you say what date you are going back to (the date on which the new order will take effect, if granted) and why you are asking to use that date. You should also explain why you didn’t make the variation application before now. Remember: whether or not the court will grant a retroactive order for some or all of the time you are asking for will depend on your situation.

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