Family Justice Courts Case Highlights

Although the idea of sanctity of contract is not applied directly in matrimonial proceedings as if they were commercial enterprises, weight is given to the negotiated settlement of the parties.

Where a child is young and unable to voice her preferences, the best interests of the child will depend on the ability and attitudes of the parents. But when a child is older, the child’s views can be significant.

The power to set aside or vary a consent order on the division of assets under s 112(4) of the Women’s Charter is to be exercised narrowly.

Where a sale of property is concerned, the market conditions of the day are significant. Although parties may sometimes agree that a sale be deferred to a later date when the value of the matrimonial asset might be higher, unless they had agreed to a floating value, they may not be bound to a fixed value when that value had changed beyond the date that they were reasonably expected to complete the transfer.

Section 112(4) of the Women’s Charter only applies to orders made under the section, and does not have retrospective application. For a variation to be justified under s 112(4), there must be “exceptional reasons” in that the order was unworkable or has become unworkable.

Remarriage in itself is a change in circumstances but whether it is sufficient to merit a variation of the maintenance order requires further examination of the nature and extent of the change.

The parents’ conflict and the spirit in which they carry out the orders on care and control could affect the child’s welfare more than the specific arrangements in those orders.

In examining the question of material change in circumstances, the inquiry is not simply whether there has been any material change per se since the maintenance order; the change must be sufficiently material such that it is no longer fair to expect the status quo to remain.

An agreement on maintenance may be varied if there has been a material change in circumstances.

The court may vary an order for the division of matrimonial assets only where the order was unworkable or has become unworkable, and only before it has been fully effected or implemented.