RELATED CASES AND POSTS
Subject to this Act, if a court has made an order under this Act ... the court may, on application, vary or rescind the order if circumstances have changed since the order was made or last varied.Under s. 16 of the Divorce Act, however, the court may vary an interim order without needing proof of a change in circumstances:
(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.Sections 17(1) and (5) of the Divorce Act concern the varying of final orders, and do require a change in circumstances:
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, ... a custody order or any provision thereof on application by either or both former spouses or by any other person.
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.Did you catch the reference in s. 17(1), about an application by a "former spouse"? In order to be a former spouse entitled to apply to vary an order the spouse must be divorced, of course, and until the spouse is divorced the requirement of a change under s. 17(5) isn't required.
"It is common ground that an order for corollary relief in a divorce action that pleads both the Divorce Act and the [Family Relations Act] cannot be a final order for corollary relief under the Divorce Act absent the granting of an order for divorce. Such an order will remain an interim order under the Divorce Act until the divorce is granted. Final corollary relief under the Divorce Act can be granted only upon the granting of an order for divorce..."In other words, when a claim asks for orders about the children under both the Divorce Act and the provincial legislation, the order will never be a final order until a divorce is granted, regardless of the intention or understanding of the parties to the order. As Mr. Justice Grauer put it, "because no order for divorce has been pronounced, any order under the Divorce Act is perforce an interim order no matter what the parties contemplated or the order states."