Recent BC Appeal Court Decision Restates Material Change Is Required For Varying BC Child Custody Orders
BC child custody cases are the most important cases we handle as BC child custody and child custody and parenting time variation lawyers. Many times BC family law clients are disappointed, if not distraught, over the court’s decisions regarding their children. Each parent sincerely wants what’s best for their children and each honestly believes their competing BC child custody and child parenting plan is the one the best promotes their children’s best interests. After an initial child custody and child parenting time order is made, what is the test for changing or varying the initial child custody and parenting plan and responsibilities decision? As we will see below the test must be a strict one to prevent endless re-litigation of the issue of child custody and parenting time and responsibilities. The test for Varying BC Child Custody Orders is whether there has been a material change since the last order that if known then would have changed the result. The law is complex in this area and legal advice involving the most valuable asset of your relationship is key.
BC Child Custody Orders Variation Requires A Material Change
The official Appeal Court Summary in this months L.S. v G.S. child custody variation case dealt with a variation to reduce shared parenting to supervised time and reinstatement of equal and shared parenting time due to an episode involving a mother’s mental health episode followed by her recovery:
In 2011, a trial judge made an order for divorce and permitted the respondent mother to move the children with her to Israel. In April 2012, this Court allowed the appellant father’s appeal, set aside the mobility order made at trial, and ordered the children be returned to Vancouver. This Court also ordered joint custody with primary residence to the appellant and access to the respondent in Vancouver on a shared parenting basis, all under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and joint guardianship under the Family Relations Act, R.S.B.C. 1996, c. 128.
The appellant and children returned to Vancouver, and the respondent followed. The Supreme Court of British Columbia then varied the respondent’s access to order access on an “equal parenting” basis on a seven-day rotation.
When the respondent had an episode of her bipolar disorder, a judge made an “interim” order that replaced the respondent’s access with supervised access. When the respondent recovered, another judge varied the “interim” order and reinstated access on a three-day rotation between the parties, with conditions for the respondent. The appellant appealed.
A month later, the appellant brought various applications under the Family Law Act, S.B.C. 2011, c. 25, based on the respondent’s failure to return the children to Vancouver in accordance with this Court’s April 2012 order. The judge dismissed the applications. The appellant also appealed from that order.
The two appeals were heard together.
Held: As to the first appeal, the judge correctly narrowed the issue before him to whether there had been a material change in circumstances since the respondent’s admission to hospital in light of her recovery and unconditional release from hospital. It was open to the judge to find the respondent’s recovery constituted a material change in circumstances since her admission to hospital, and to reinstate access on an equal parenting basis, on conditions.
As to the second appeal, this case was not commenced, litigated, or concluded under the Family Law Act. This Court’s discretion to address new issues not previously raised is generally exercised sparingly and only where the interests of justice require it. It is not in the interests of justice for this Court to engage in the exercise of statutory interpretation required to resolve issues of jurisdiction not argued before the trial court.
Appeals dismissed.
Father Loses Appeal Of Decision Varying BC Child Custody Orders
The trial judge had reinstated shared custody of the parties’ children putting in place safeguards regarding the mother’s mental illness:
[56] As stated, the Schultes Order varied the supervised access order of N. Smith J., pronounced on October 22, 2013, and extended on October 30, 2013. The Schultes Order provided:
1. The Orders of The Honourable Mr. Justice N. Smith pronounced on October 22, 2013 and October 30, 2013 are varied to the following extent:
The claimant [L.S.] may exercise parenting time with the [children] in alternating periods with the respondent of 72 hours duration, with the claimant’s access or parenting time commencing on Tuesday, December 24, 2013 at 3 pm and continuing for 72 hours thereafter until further order of the Court. Exchanges are to take place with the respondent at 3 pm at … Shopping Centre except if the exchange date is a school day, in which case the exchange will be at the [children’s] school at 3 pm.
2. The claimant’s ability to exercise her parenting time is subject to the following further conditions:
a. she is to maintain herself in a condition in which her mental illness is not likely to cause harm to herself or others and in particular to her children;
b. she is to continue to attend upon Dr. Brigitta [sic] Donahue as her treating psychiatrist, and Kathleen Pennykid as her case manager, at the … Community Health Centre;
c. the claimant’s attendances are to be as directed by Dr. Donahue and Ms. Pennykid, or either of them, but in any case not less than once every 2 weeks; and
d. she is to continue to take all medication as prescribed and directed by her psychiatrist, and to provide such assurances to her psychiatrist as the psychiatrist may require from time to time to ensure her compliance with prescribed medication including blood tests.
3. Costs are awarded to the claimant in the amount of $1000 inclusive of disbursement and taxes, and they may be set off against any outstanding costs that are owed by the claimant to the respondent.
[57] Mr. Justice Schultes concluded he had jurisdiction to vary the supervised access order and that his variation order would be subject to further variation upon a material change in circumstances, as is any corollary relief order under the DivorceAct. He said:
[7] I will just say something about jurisdiction first. My initial impression when this hearing began was that I was being asked to make an interim order pending Smith J.’s resolution of the parenting time issues. However, counsel for L.S. submits that s. 17 of the Divorce Act is actually what applies here. That is, I should characterize Smith J.’s order as a suspension of the previous order, as that term is used in s. 17(1). I am now being asked to vary that suspension pursuant to the same section, to provide for additional access. Under this analysis, if I grant the application I would not be making an interim order, but rather an additional variation, which will stand until a further material change of circumstances is shown.
[8] This distinction is important to G.S., because he wishes to have the opportunity to argue against any order that I may make increasing L.S.’s parenting time when he gets before Smith J. again in January. He had his own application before me as well, which I have adjourned to January, on the basis that what Smith J. gave leave for another judge to do was deal in his absence with the restrictions that he had made to the parenting time specified in Burnyeat J.’s order, and not to consider other issues.
[9] I had some initial hesitation on this point, because of course a material change in circumstances is meant to be something that was not in the contemplation of the judge who makes the order that one is trying to vary. I wondered whether Smith J. envisioned a sufficient improvement in L.S.’s condition that some modification of his order to increase her parenting time was inevitable. On reflection however, I think that while such an improvement must have been a possibility or he would not have granted leave to bring an application in his absence, it was not sufficiently definite or predictable to qualify as a matter within his contemplation that precludes a further application based on it now. The point of requiring a material change in circumstances to vary an order is to prevent endless re-litigation of the same or similar facts. I do not see how that value is undermined by hearing this application, because it is not clear what order Smith J. could have made to anticipate accurately what has since occurred.
[10] So, for G.S. to revisit anything that I now order, he will have to show a material change in circumstances with respect to issues arising from the mental condition of L.S. Other matters relating to the best interests of the children that have not been argued before me may of course be raised before Smith J.
BC Court of Appeal Reiterates That A Material Change Is Required To Vary Child Custody Order
[77] G.S. relies on Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 13, which decided as a threshold matter that before entering on the merits of an application to vary a custody order (or access order), a judge must be satisfied of a material and unforeseen change in the circumstances of the child and/or the ability of the parents to meet the needs of the child.
[78] I see no merit to G.S.’s contention that L.S.’s recovery from her manic episode was not a material change in circumstances. Mr. Justice Schultes reasonably considered that an improvement in her condition was not sufficiently definite or predictable to qualify as being within the contemplation of N. Smith J. when he earlier varied her equal access to supervised access. Thus, her recovery did not preclude L.S.’s variation application.
[79] The judge agreed with G.S. that the possibility of L.S. relapsing while she had care of the children was a serious concern. But having considered it, he said, “I also have to look at what she has committed to do in the future, and judge whether that is sufficient to address the Court’s concerns” (at para. 34).
[80] He concluded:
[35] I am satisfied that her recovery to date does constitute a material change in circumstances which, if known at the time of the suspensions, would have resulted in a different order. In fact there might not have needed to be any order suspending parenting time, or there would have been a less restrictive order than what resulted.
[36] I am going to put conditions in place to govern L.S.’s parenting time, and there are going to be some additional conditions attached to it that relate to her own conduct. I want to make it clear that the Court’s jurisdiction to do so arises solely in the context of her exercising this parenting time. She is not under the Court’s jurisdiction for any other purpose. What I am ordering her to do is as a precondition to exercising her parenting time and not some freestanding effort to govern her conduct in the community.
[37] I will vary the suspension orders of Mr. Justice Smith to this extent: L.S. may exercise parenting time with the [children], in alternating periods with the respondent of 72 hours’ duration. Her access or her parenting time beginning tomorrow at 3:00 p.m., and continuing for 72 hours thereafter, with the subsequent exchange with G.S. taking place at 3:00 p.m. at that point, and thereafter for periods of 72 hours until further order of the Court. The exchange point will be at the … shopping centre.
[Emphasis added.]
Mr. Justice Schultes imposed strict conditions upon L.S.’s access to the children, as reflected in his order replicated above.
[81] Gordon v. Goertz also decided that once a material change in circumstances had been established, the court must embark on a fresh inquiry described as follows:
47. … The parent seeking the change bears the initial burden of demonstrating a material change of circumstances. Once that burden has been discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof.
In the end all of the husband’s appeal relief was dismissed. If you have a Varying BC Child Custody Orders case contact our top rated child custody variation lawyers at any of our 4 offices across BC located in Fort St John, Kelowna, Surrey or Vancouver, BC.
