BC child custody orders are often made on incomplete and untested affidavit evidence and represent a reasonable interim solution until the matters in the dispute can be thoroughly reviewed with the parties giving their story in the witness box and being cross examined together with other witnesses and perhaps experts being subject to the same procedure. An interim child custody hearing might take 2 hours while atrial on the issues can take several days or weeks to conclude. Once a final court order has been pronounced the test for setting aside or varying such an order in a child custody case is that the party must prove a material change has occurred since the making of the original order that if known at the time of the original order would have led to a different order being made. The BC Court of Appeal has made it very clear that there is no need to prove a material change of circumstances has occurred between the making of an interim child custody order and the 1st full hearing of the matter that will lead to the 1st final order being made.
In the recent decision from our Court of Appeal in Wood v Wood dealt with a BC child custody case, wherea father and mother brought competing child custody, guardianship, access and disputed relocation claims at a trial on affidavits -which normally is only an appropriate alternative to a normal trial where the parties go in the witness box in clear cut cases.
[7] The mother’s mobility application was based on her view her employment and educational prospects would be better in Kamloops, and this would ultimately provide a better opportunity for a stable and positive lifestyle for the boys. In addressing this, the chambers judge found the mother had to establish a material change in circumstances before her application could be considered, citing the decision of the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 at paras. 10-12. He found Ms. Woods had not provided evidence of such a change and so dismissed her application.
[8] The mother submits the trial judge erred in finding she had to establish a material change before proceeding with her mobility application, because the parties had not yet obtained a final order dealing with custody. She points out Gordon dealt with a situation in which the parties had a final order and the mother therefore had to establish the change required under s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3, before it could be varied. The mother says that is not the case here. There is only an interim order, and there was no requirement to prove a material change. Her application should have been referred to the trial list along with the parties’ cross-applications for a final determination of custody, guardianship, and access.
[9] I am satisfied the trial judge did err by failing to appreciate the difference between an interim and final order in this context, and by holding the mother had to establish a material change in circumstances before her application to move could be heard. There is no requirement to prove such a change when the application relates to an interim order: Javid v. Kurytnik, 2006 BCCA at 5.
[10] It makes eminent sense to remit the mother’s mobility application to be heard at trial in conjunction with the issues of custody, guardianship, and access. Her proposed relocation is a significant factor to be balanced with others in determining what will best serve the interests of the children, and their ultimate place of residence will clearly have an impact on access rights. The Views of the Children Report that is in progress will be helpful in addressing this issue as well.
[11] I would allow the appeal, set aside the order dismissing the mother’s application to move with the children to Kamloops, and remit that matter to the Supreme Court for consideration to relocate with them to Kamloops, with consequential variation in the father’s access. The father applied for a final order for joint custody and guardianship, and for expanded access, and opposed the mother’s proposed move.
What was interesting was that the trial judge felt that it was inappropriate to decide the issues of custody guardianship and access on affidavits rather than on hearing the parties but felt that it was appropriate before making a decision on who will would have custody and guardianship and what the access would be to dismiss the mother’s claim to move away with the child. In the end result the Court of Appeal set aside the dismissal of the mother’s application to moved to Kamloops based on affidavits and ordered that issue to be dealt with along with all the other issues the trial judge felt needed to be the subject of a full hearing with the parties and their witnesses would take the witness stand and be cross examined and a wishes of the child report would be provided to the court allowing it to make a thorough and detailed finding on the issues.
While interim orders do not bind the trial judge they have a tremendous impact on how the litigation unfolds and on settlement discussions so it is important that when you are dealing with a child custody guardianship and access case that you hire senior and experienced counsel so that you put your best foot forward early on in your case to lull the matter to move forward promptly toward settlement and failing that to resolution in the courtroom.
Call any of our experienced child custody lawyers at any of our 4 offices across the province by calling toll-free 1 877 602 9900.
