RULE 15: MOTIONS TO CHANGE A FINAL ORDER OR AGREEMENT

See:  O. Reg. 89/04, ss. 7 (1), 18.

STATUS REVIEW APPLICATIONS

15.  (0.1)  This rule does not apply to a final order in a child protection case that is reviewable under section 64 of the Child and Family Services Act.  O. Reg. 544/99, s. 7 (1).

Note:  On July 1, 2004, subrule (0.1) is revoked and the following substituted:

APPLICATION

(0.1)  This rule applies,

(a)   to motions to change an agreement for support filed under section 35 of the Family Law Act;

(b)   to motions to change a final order, except a final order in a child protection case that is reviewable under section 64 of the Child and Family Services Act.  O. Reg. 89/04, s. 7 (2).

See:  O. Reg. 89/04, ss. 7 (2), 18.

SPECIAL SERVICE, MINIMUM NOTICE PERIOD — MOTION TO CHANGE FINAL ORDER OR AGREEMENT

(1)  Notice of a motion to change a final order or agreement and the supporting evidence shall be served by special service (subrule 6 (3)), and not by regular service,

(a)   not later than 30 days before the motion is to be heard, if the party to be served resides in Canada or the United States of America;

(b)   not later than 60 days before the motion is to be heard, if the party to be served resides elsewhere.  O. Reg. 114/99, r. 15 (1).

REGULAR SERVICE ON OFFICIALS, AGENCIES, ETC.

(2)  Despite subrule (1), the notice of motion and evidence may be served on the persons mentioned in subrule 8 (6) (officials, agencies, etc.) by regular service.  O. Reg. 114/99, r. 15 (2).

Note:  On July 1, 2004, Rule 15 is amended by adding the following subrule:

MOTION NOT TO BE HEARD BEFORE CASE CONFERENCE

(2.1)  A party may serve a notice of motion and supporting evidence for an order to change a final order or agreement before a case conference has been held, but the motion may not be heard before a case conference has been completed.  O. Reg. 89/04, s. 7 (3).

See:  O. Reg. 89/04, ss. 7 (3), 18.

PLACE FOR MOTION TO CHANGE ORDER OR AGREEMENT

(3)  Rule 5 (where a case starts) applies to a motion to change an order or agreement as if the motion were a new case.  O. Reg. 114/99, r. 15 (3).

CHANGE OF SUPPORT — SERVICE ON ASSIGNEE OF SUPPORT

(4)  In a motion to change a support order or agreement that has been assigned to a person or agency, as the Divorce Act (Canada) and the Family Law Act permit, the parties shall serve their documents on the assignee as if the assignee were also a party.  O. Reg. 114/99, r. 15 (4).

ASSIGNEE MAY BECOME PARTY

(5)  On serving and filing a notice claiming a financial interest in the motion, the assignee becomes a respondent to the extent of the financial interest.  O. Reg. 114/99, r. 15 (5).

SANCTIONS IF ASSIGNEE NOT SERVED

(6)  If the assignee is not served as subrule (4) requires,

(a)   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;

(b)   the party who asked for the change has the burden of proving that the changed order should not be set aside; and

(c)   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. 114/99, r. 15 (6).

CONTENTS OF AFFIDAVIT

(7)  An affidavit for use on a motion to change an order or agreement shall set out,

(a)   the place where the parties and the children ordinarily reside;

(b)   the name and birth date of each child to whom a proposed change relates;

(c)   whether a party has married or begun living with another person;

(d)   details of current custody and access arrangements;

(e)   details of current support arrangements, including details of any unpaid support;

(f)   details of the change asked for and of the changed circumstances that are grounds for a change in the order or agreement;

(g)   details of any efforts made to mediate or settle the issues and of any assessment report on custody or access;

(h)   in a motion to change a support order or agreement, whether the support was assigned and any details of the assignment known to the party asking for the change;

(i)   in a motion to change a child support order or agreement, income and financial information required by section 21 of the applicable child support guidelines; and

(j)   in a motion to change a child support order or agreement to an amount different from the amount in the table of the applicable child support guidelines, evidence to satisfy the court that it should make the order asked for.  O. Reg. 114/99, r. 15 (7).

EXHIBIT TO AFFIDAVIT

(8)  In addition, a copy of any existing order or agreement that deals with custody, access or support shall be attached as an exhibit to the affidavit, unless a copy is already in the continuing record, and then the affidavit shall indicate its location in the record.  O. Reg. 114/99, r. 15 (8).

Note:  On July 1, 2004, subrule (8) is revoked and the following substituted:

EXHIBIT TO AFFIDAVIT

(8)  In addition, a copy of any existing order or agreement that deals with custody, access or support shall be attached as an exhibit to the affidavit.  O. Reg. 89/04, s. 7 (4).

See:  O. Reg. 89/04, ss. 7 (4), 18.

CHILD SUPPORT CHANGE ON CONSENT

(9)  Subrule (10) applies instead of subrule (7) if the parties have agreed to an order,

(a)   that changes only a child support order or agreement; and

(b)   the only terms of which are one or more of the following:

1.   Payment of child support, whether in accordance with the applicable child support guidelines or not, or ending child support.

2.   Suspension, reduction or cancellation of unpaid child support.

3.   Payment of unpaid child support in accordance with a payment schedule.

4.   Payment of costs.  O. Reg. 114/99, r. 15 (9).

CHILD SUPPORT CHANGE ON CONSENT — MATERIAL TO BE FILED

(10)  In a case described in subrule (9), instead of serving and filing a notice of motion and the affidavit described in subrule (7), the parties shall file,

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

(b)   a consent (Form 15A);

(c)   five copies of a draft order;

(d)   a stamped envelope addressed to each party;

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

(f)   a draft support deduction order.  O. Reg. 114/99, r. 15 (10).

CONSENT MOTION — PARTIES NOT TO COME TO COURT

(11)  If the parties have filed the material described in subrule (10),

(a)   they shall not come to court, but the clerk shall present the material to a judge; and

(b)   the judge may make the order asked for, or require one or both parties to file further material or come to court.  O. Reg. 114/99, r. 15 (11).

CONTESTED CHILD SUPPORT CHANGE — MATERIAL TO BE SERVED

(12)  If a motion to change a child support order or agreement is not proceeding with the other party’s consent,

(a)   the party asking for the change may serve and file a change information form (Form 15) with all required attachments, instead of an affidavit;

(b)   the party responding to the motion shall serve and file an affidavit that sets out any disagreement with the evidence of the party asking for the change; and

(c)   if a party claims that an order should not be made in accordance with the tables in the applicable child support guidelines, the support recipient and the support payor shall each serve and file an affidavit containing 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:

Section 4 (income over $150,000)

Section 5 (step-parent)

Section 7 (special expenses)

Section 8 (split custody)

Section 9 (shared custody)

Section 10 (undue hardship)

Section 21 (income and financial information)

O. Reg. 114/99, r. 15 (12).

POWERS OF COURT

(13)  If the court is of the opinion that a motion, whether made 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. 114/99, r. 15 (13).

CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

(14)  The court may, on motion, change an order that,

(a)   was obtained by fraud;

(b)   contains a mistake;

(c)   needs to be changed to deal with a matter that was before the court but that it did not decide;

(d)   was made on a motion without notice; or

(e)   was made on a motion with notice, if through accident or inadequate notice an affected party did not appear on the motion.  O. Reg. 114/99, r. 15 (14).

(15)  Revoked:  O. Reg. 544/99, s. 7 (2).

Note:  On July 1, 2004, Rule 15 is amended by adding the following subrules:

APPLICATION OF RULE 14

(15)  Rule 14 applies with necessary modifications to a motion to change a final order or agreement.  O. Reg. 89/04, s. 7 (5).  

MOTION UNDER RULE 14

(16)  A motion under rule 14 may be made on a motion to change a final order or agreement.  O. Reg. 89/04, s. 7 (5).

See:  O. Reg. 89/04, ss. 7 (5), 18.