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Family Law Rule – Rule 15: Motions to Change a Final Order or Agreement

Angela Princewill

November 14, 2015

RULE 15:  MOTIONS TO CHANGE A FINAL ORDER OR AGREEMENT

DEFINITION

  1. (1) In this rule,

“assignee” means an agency or person to whom a support order or agreement that is the subject of a motion under this rule is assigned under the Family Law Act or the Divorce Act (Canada).  O. Reg. 151/08, s. 4.

APPLICATION

(2) Subject to subrule (3), this rule only applies to a motion to change,

(a) a final order; or

(b) an agreement for support filed under section 35 of the Family Law Act.  O. Reg. 151/08, s. 4.

EXCEPTION

(3) This rule does not apply to a motion or application to change an order made under the Child and Family Services Act, other than a final order made under section 57.1 of that Act.  O. Reg. 151/08, s. 4.

PLACE OF MOTION

(4) Rule 5 (where a case starts) applies to a motion to change a final order or agreement as if the motion were a new case.  O. Reg. 151/08, s. 4.

MOTION TO CHANGE

(5) Subject to subrules (17) and (18), a party who wants to ask the court to change a final order or agreement shall serve and file,

(a) a motion to change (Form 15); and

(b) a change information form (Form 15A), with all required attachments.  O. Reg. 151/08, s. 4.

CLAIM FOR CUSTODY OR ACCESS

(5.1) If the motion includes a claim for custody of or access to a child, the documents referred to in subrule (5) shall be accompanied by the applicable documents referred to in rule 35.1.  O. Reg. 6/10, s. 6 (1).

SERVICE TO INCLUDE BLANK FORMS

(6) The party making the motion shall serve on the other party a blank response to motion to change (Form 15B) and a blank consent motion to change (Form 15C) together with the documents referred to in subrule (5).  O. Reg. 151/08, s. 4.

SPECIAL SERVICE

(7) The documents referred to in subrules (5), (5.1) and (6) shall be served by special service (subrule 6 (3)), and not by regular service.  O. Reg. 151/08, s. 4; O. Reg. 6/10, s. 6 (2).

EXCEPTION

(8) Despite subrule (7), service on the persons mentioned in subrule 8 (6) (officials, agencies, etc.) may be made by regular service.  O. Reg. 151/08, s. 4.

RESPONSE OR CONSENT TO MOTION

(9) The following rules apply to a party who is served with a motion to change a final order or agreement:

  1. If the party does not agree to the change or if the party wants to ask the court to make an additional or a different change to the final order or agreement, the party shall serve and file a response to motion to change (Form 15B), with all required attachments, within the time set out in clause (10) (a) or (b), as the case may be.
  2. If the party agrees to the change or if the parties agree to a different change, the party shall complete the applicable portions of the consent motion to change (Form 15C) and shall, within the time set out in clause (10) (a) or (b), as the case may be,
  3. return a signed copy of the consent motion to change to the party making the motion, and
  4. provide a copy of the signed consent motion to change to the assignee, if any.  O. Reg. 151/08, s. 4.

SAME

(10) The documents referred to in paragraphs 1 and 2 of subrule (9) shall be served and filed or returned and provided,

(a) no later than 30 days after the party responding to the motion receives the motion to change and the supporting documents, if that party resides in Canada or the United States of America; or

(b) no later than 60 days after the party responding to the motion receives the motion to change and the supporting documents, in any other case.  O. Reg. 151/08, s. 4.

SERVICE ON ASSIGNEE REQUIRED

(11) In a motion to change a final order or agreement that has been assigned to an assignee, a party shall, in serving documents under subrule (5) or paragraph 1 of subrule (9), serve the documents on the assignee as if the assignee were also a party.  O. Reg. 151/08, s. 4.

ASSIGNEE MAY BECOME PARTY

(12) On serving and filing a notice claiming a financial interest in the motion, an assignee becomes a respondent to the extent of the financial interest.  O. Reg. 151/08, s. 4.

SANCTIONS IF ASSIGNEE NOT SERVED

(13) If an assignee is not served as required by subrule (11), the following rules apply:

  1. The court may at any time, on motion by the assignee with notice to the other parties, set aside the changed order to the extent that it affects the assignee’s financial interest.
  2. The party who asked for the change has the burden of proving that the changed order should not be set aside.
  3. If the changed order is set aside, the assignee is entitled to full recovery of its costs of the motion to set aside, unless the court orders otherwise.  O. Reg. 151/08, s. 4.

NO RESPONSE OR CONSENT

(14) The consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a party does not serve and file a response to motion to change (Form 15B) or return a consent motion to change (Form 15C) to the party making the motion as required under subrule (9). O. Reg. 322/13, s. 9 (1); O. Reg. 142/14, s. 8.

REQUEST FOR ORDER

(15) If a party does not serve and file a response to motion to change (Form 15B) or return a consent motion to change (Form 15C) to the party making the motion as required under subrule (9), or if the party’s response is struck out by an order, the party making the motion to change may file a motion form (Form 14B) asking that the court make the order requested in the materials filed by the party, unless an assignee has filed a notice of financial interest in the motion and opposes the change.  O. Reg. 151/08, s. 4; O. Reg. 322/13, s. 9 (2).

CONSENT TO MOTION

(16) If a party returns to the party making the motion a consent motion to change (Form 15C) in accordance with subparagraph 2 i of subrule (9), the party making the motion shall complete and file the consent motion to change and, unless any assignee refuses to consent to the change being requested, the party making the motion shall file with the consent motion to change,

(a) a motion form (Form 14B) asking that the court make the order described in the consent motion to change;

(b) five copies of a draft order;

(c) a stamped envelope addressed to each party and to the assignee, if any; and

(d) if the order that is agreed on relates in whole or in part to a support obligation,

(i) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996, and

(ii) a draft support deduction order.  O. Reg. 151/08, s. 4.

MOTION TO CHANGE ON CONSENT

(17) Subject to subrule (18), if the parties to a final order or agreement want to ask the court to change the final order or agreement and the parties and any assignee agree to the change, the parties shall file,

(a) a change information form (Form 15A), with all required attachments;

(b) a consent motion to change (Form 15C);

(c) a motion form (Form 14B) asking that the court make the order described in the consent motion to change;

(d) five copies of a draft order;

(e) a stamped envelope addressed to each party and to the assignee, if any; and

(f) if the order that is agreed on relates in whole or in part to a support obligation,

(i) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996, and

(ii) a draft support deduction order.  O. Reg. 151/08, s. 4.

MOTION TO CHANGE ON CONSENT — CHILD SUPPORT ONLY

(18) If the parties to a final order or agreement want to ask the court to change the final order or agreement in relation only to a child support obligation, and the parties and any assignee agree to the change, the parties shall file,

(a) a consent motion to change child support (Form 15D), with all required attachments;

(b) five copies of a draft order;

(c) a stamped envelope addressed to each party and to the assignee, if any;

(d) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996; and

(e) a draft support deduction order.  O. Reg. 151/08, s. 4.

CONSENT AFTER RESPONSE FILED

(19) If, at any time after a party has served and filed a response under paragraph 1 of subrule (9) and before the motion to change is heard, the parties and any assignee agree to an order that changes the final order or agreement that is the subject of the motion, the parties may proceed on consent by filing,

(a) a consent motion to change (Form 15C);

(b) a motion form (Form 14B) asking that the court make the order described in the consent motion to change;

(c) five copies of a draft order;

(d) a stamped envelope addressed to each party and to the assignee, if any; and

(e) if the order that is agreed on relates in whole or in part to a support obligation,

(i) a support deduction order information form prescribed under the Family Responsibility and Support Arrears Enforcement Act, 1996, and

(ii) a draft support deduction order.  O. Reg. 151/08, s. 4.

ORDER, AGREEMENT TO BE ATTACHED

(20) A copy of any existing order or agreement that deals with custody, access or support shall be attached to every change information form (Form 15A) or consent motion to change child support (Form 15D).  O. Reg. 151/08, s. 4.

CHANGE NOT IN ACCORDANCE WITH CHILD SUPPORT GUIDELINES

(21) Unless a motion to change a child support order or agreement is proceeding on the consent of the parties and any assignee, if a party asks that an order be made under this rule that is not in accordance with the tables in the applicable child support guidelines, the support recipient and the support payor shall each serve and file the evidence required by the following sections of the applicable child support guidelines, or the evidence that is otherwise necessary to satisfy the court that it should make the order asked for:

  1. Section 4 (income over $150,000).
  2. Section 5 (step-parent).
  3. Section 7 (special expenses).
  4. Section 8 (split custody).
  5. Section 9 (shared custody).
  6. Section 10 (undue hardship).
  7. Section 21 (income and financial information), subject to subrule (21.1).  O. Reg. 151/08, s. 4; O. Reg. 69/15, s. 4 (1).

FINANCIAL DISCLOSURE

(21.1) Subrule (21) does not require that any documents already served on the other party under subrule 13 (5.0.1) be served again, but any such documents are required to be filed. O. Reg. 69/15, s. 4 (2).

AFFIDAVIT MAY BE FILED

(22) A party or parties who want to ask the court to change a final order or agreement may, instead of using a change information form (Form 15A), use an affidavit containing evidence necessary to satisfy the court that it should make the order asked for and, in that case, these rules apply to the affidavit as if it were a change information form.  O. Reg. 151/08, s. 4.

SAME

(23) A party who responds to a motion to change a final order or agreement by serving and filing a response to motion to change (Form 15B) may use an affidavit to provide evidence supporting his or her position instead of relying on the relevant portions of the form to provide the evidence or in addition to those portions of the form and, in that case, the affidavit is deemed to be part of the form.  O. Reg. 151/08, s. 4.

REQUIREMENTS FOR AFFIDAVIT

(24) Subrules 14 (18) and (19) apply with necessary changes to an affidavit provided in accordance with subrule (22) or (23).  O. Reg. 151/08, s. 4; O. Reg. 142/14, s. 8.

POWERS OF COURT — MOTION ON CONSENT OR UNOPPOSED

(25) If a motion to change a final order or agreement proceeds on the consent of the parties and any assignee or is unopposed, the clerk shall present the filed materials to a judge and the judge may,

(a) make the order asked for;

(b) require one or both parties to file further material; or

(c) require one or both parties to come to court.  O. Reg. 151/08, s. 4.

POWERS OF COURT — DIRECTIONS

(26) If the court is of the opinion that a motion, whether proceeding on consent or not, cannot be properly dealt with because of the material filed, because of the matters in dispute or for any other reason, the court may give directions, including directions for a trial.  O. Reg. 151/08, s. 4.

APPLICATION OF SUBRULE 14 (21)

(27) Subrule 14 (21) applies with necessary changes to a motion to change a final order or agreement. O. Reg. 322/13, s. 9 (3) ; O. Reg. 142/14, s. 8.

MOTION UNDER RULE 14

(28) A motion under rule 14 may be made on a motion to change a final order or agreement.  O. Reg. 151/08, s. 4.

ACCESS TO LISTED DOCUMENTS

(29) Subrule 19 (2) (access to listed documents) applies with necessary changes to a document mentioned in a form or affidavit used under this rule.  O. Reg. 151/08, s. 4; O. Reg. 142/14, s. 8.

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