As highly rated child custody and guardianship and access lawyers, we frequently deal with emotion laden cases involving care and control of children and the issue of variation and change of custody and access orders. It comes as no surprise that, after a judgment is rendered in a disputed custody hearing one party will be satisfied and one party will be upset.
To prevent disgruntled parties from coming back to court every few weeks to change an order they disagree with and to ensure there is not disruption to the children by continued litigation: a test that prevents repeated court applications when nothing has changed but that also allows for a change in cases where the original order no longer meets the best interests of the children has developed under our statutory and case law. A recent British Columbia case deals with the issue of when and under what test should the court reviewed the original order of custody and guardianship and access and consider making changes that will be in the best interests of the children.
In the past, it was considered that children should be insulated from involvement in decisions regarding their time with each parent however both United Nations and a growing body of psychological literature support the concept that best outcomes for children involved their participation as opposed to exclusion. The courts also need to consider that, to be effective, a custody order for children around age 12 or older needs to reasonably comply with their wishes so as not to push the children to the point of rebellion.
The question becomes: how do we obtain the evidence of the wishes of the children. This can be obtained through section 15 custody and access for reports, wishes of the child reports, direct evidence from the children and even interviews of the children by the judge hearing the case.
In Heisler a decision released this week, Madam Justice Gray reviewed the law on variation and applied it to a case of high conflict where:
- there had been access difficulties;
- there were maintenance arrears and contempt;
- mountains of the conflicting evidence from the parents had been produced
- multiple custody and access reports and discussions with the two children had been done
- and the fact that there have been multiple applications in the past 6 years since the original judgment,
and held that there would be no immediate change to the custody order but that given the ages of the children being now 13 and 11 that a date would be set to obtain evidence from the children independent from evidence of the parents and that the parties could make submissions on how best to attain that evidence whether it be by a wishes of the child report, a further custody and access report, evidence directly from the children, or judicial interview by the judge of the children themselves.
The Test to Change and Order Is:
a) Parenting Arrangements
[70] The Divorce Act, R.S.C. 1985, c.3 (2nd Supp), s. 17(5)(6) and (9) provides as follows:
(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.
(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.
(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.
[71] The Supreme Court of Canada has given guidance on the threshold issue of material change of circumstances. That is set out in the case of Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 11-12 as follows:
The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 8 R.F.L. (3d) 139 (B.C.C.A); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194.
What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”: J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
[Emphasis in original]
[72] As set out in the Family Law Source Book, at 2.45:
A change in circumstances must represent a clear and distinct departure from what the court knew of the circumstances or could reasonably have anticipated when making the order (Canning v. Fearn, 2000 BCC 362). A change in circumstances will not be material unless it was not foreseen or could not reasonably have been contemplated by the judge in making the original order (Dietrich v. Kujbida, 2004 BCSC 455).
[73] As set out in Carter v. Carter, (1991), 58 B.C.L.R. (2d) 45, 2 B.C.A.C. 41, a material change must be “substantial, unforeseen, and of a continuing nature.”
[74] The overall law is summarized at para. 49 of Gordon, and item 3 is particularly relevant here:
1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
This area of the law is complex and strategy is involved well in advance of the court application. Call us at any of our 4 offices in Vancouver, Surrey, Kelowna and in Fort St. John toll-free at 1 877 602 9900.
