In understanding the difference between an application and a motion to change in family law cases, it is imperative to start with basic definitions.
What is an Application?
An application is how family court cases are initiated. Rule 8 (1) of the Family Law Rules provides that to start a case, a person shall file an application in the prescribed form. In an application, an individual involved in a family law dispute can make a claim against more than one person; and more than one claim against the same person[1]. An application sets out: (i) the issues that a judge is asked to resolve; (ii) the applicant’s relationship to the respondent; (iii) details about any children from the relationship; (iv) and any other facts relied on to support the application.
What is a Motion to Change?
A motion to change is the court process used when a person, who is a party in an already commenced family court case, wants to ask a judge to:
1. change or end a final family court order, or
2. change or end an agreement to pay support.
Rule 15 (5) of the Family Law Rules provides that a party who wants to ask the court to change a final order or agreement shall serve and file a motion to change in the prescribed form, with all required attachments.
A motion to change is used to vary or end final orders of the court as they relate to:
· support payments,
· decision-making responsibility,
· parenting time, or
· a restraining/non-harassment order.
The Difference
Applications initiate the process in family court cases, whereas motions to change are utilized to vary or end a final family court order or an agreement to pay support in an already commenced family court case.
The Exception – When Required to Proceed by Motion
Despite what has been stated above, there are situations when parties in family law cases are required to proceed by motion instead of an application. Rule 8 (1.2) of the Family Law Rules provides that the party entitled to enforcement under a family arbitration agreement shall make a motion in that case rather than an application.
[1] Family Law Rules, Rule 8 (3) (a) & (b)
If you need any help with family law matters, contact AP professional lawyers in Markham, Pickering, Toronto, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.
