The recent BC Supreme Court decision of S.B. v. S.M 2014 BCSC 2105 has reiterated what must be proved under either of the Divorce Act or BC Family Law Act in order for the court to change an earlier final child custody or child parenting order in British Columbia. In SB v SM, a change was allowed by the Court due to high conflict between both parents and allegations of parental alienation. The court carefully addressed the important legal test for changing prior court orders. Child custody and parenting orders are never final but neither can they be easily changed. The test to succeed on a variation of an earlier order is stringent to prevent multiple reappearances in court by disappointed parties to change Orders they are dissatisfied with. In simple terms, the first order is entitled to respect unless it can be shown facts are now present, which had they existed at the time of the first order would have caused a different order to be made to protect a child’s best interests.
The court followed an earlier BC Court of Appeal order establishing the proper test for variation of BC child parenting orders:
A. The Test for Variation of Custody and Guardianship
[100] Neither party addressed the legal test for variation of a custody, guardianship or parenting order.
[101] The original order by which custody and guardianship were established (the order of Gill J. of November 7, 2006) did not specify the statute that was to govern its provisions. Fortunately, the test of “material change in circumstances” applies to applications to vary a final order for custody or support made pursuant to either the Divorce Act or the Family Relations Act: Boychuck v. Singleton, 2008 BCCA 355.
Post Separation Conflict Between Parents Harms A Child
As experienced family lawyers, we tell our client nothing harms the normal development of a child more than prolonged post separation conflict. We tell them to focus on loving their child more than they dislike their ex spouse and to not denigrate the other parent in the child’s presence. In most cases parents are able to cooperate for their child’s sake but in others action by the Courts will be needed:
[117] I am satisfied that both parents are loving parents who, if parenting alone, would give their son a reasonable upbringing. Economically the households are similar. A.’s social and school ties are associated much more with the mother’s household and a change to S.M.’s home would disrupt these significantly. Such a change would also disrupt A.’s relationship with his half-siblings. These prospective disruptions weigh against the change sought by S.M.
[118] The differing parenting styles of S.B. and S.M. — as well as, I strongly suspect, A.’s awareness of the conflict between his parents — are causing A. stress and anxiety. Each parent suspects that the other parent is being openly critical of them in A.’s presence. Dr. Posthuma found no evidence of any campaign by S.B. and T.B. to marginalize S.M. as a parent, instead finding more evidence of hostility by S.M. against S.B. Again, he noted that A. was much more relaxed and natural in the home of S.B. and T.B.
[119] Although S.M. said he felt he was less likely to prohibit access than S.B., and more likely to encourage A.’s relationship with her, from the evidence as a whole I consider the opposite is true.
[120] This brings me to the s. 15 report itself. Dr. Elterman was critical of Dr. Posthuma’s methodology. I found that Dr. Posthuma answered some of these criticisms satisfactorily. While there may be some force in Dr. Elterman’s comment that Dr. Posthuma seems to have arrived at a conclusion and then looked for evidence to back it up, it seems plain from the evidence at trial that the conflict between the parties is a substantial cause of A.’s difficulties, as Dr. Posthuma concluded.
The court varied the original order to put one parent in charge and to set exact times for child contact with the other parent as well as orders for counselling for the child.
If you seek a variation of BC child parenting orders and want a lawyer with decades of experience to help you you can feel confident in retaining the lawyers at MacLean Law.
Contact MacLean Law To Move Forward Successfully
If you have a difficult child custody or parenting case, or if you just want guidance on how to put a plan in place that becomes a win win parenting plan for the child and both parents then call us now to meet with us at any of our 4 offices across BC located in Fort St John, Surrey, Kelowna and Vancouver BC. 1-877-602-9900.
