What is the traditional approach to vary a final judgment or order?

Alberta, Canada


The following excerpt is from Unterschultz v Clark, 2021 ABQB 492 (CanLII):

The traditional approach is reflected in Gilewich v. Strand, 2007 SKQB 70 (McIntyre J.): When an application to vary a final judgment or order comes before the court in chambers there are three options: 1) If the court is able to conclude on the basis of the material before it that there has been no material change of circumstance the application is dismissed; 2) If, on the other hand, the court is able to conclude that there has in fact been a material change in circumstance the court will proceed to the second stage of the inquiry and assuming the affidavit material is adequate the court will make a new order. The clearest example of this is an application to vary a child support order based upon a change in income. There may be circumstances where even if the court is satisfied that there has been a material change in circumstance it will require either a trial of an issue or a viva voce hearing to resolve the second stage of the inquiry; [and] 3) Where the court is satisfied that the circumstances before it could constitute a material change of circumstance, the court may direct that the matter proceed to a pre-trial conference and a trial. I do not exclude resolution by other avenues such as directing a trial of the issue or a viva voce hearing, in the appropriate circumstance. [para 10] [emphasis added]

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