New BC Appeal Court Sets Test For Varying Child Parenting Arrangements –
What should the test be for varying child parenting arrangements? A new BC Court of Appeal case has established the test under our new Family Law Act for varying child parenting arrangements. If the test for varying child parenting arrangements is too high children might suffer from an unhealthy parenting environment but if the test for varying child parenting arrangements is too low a disappointed party that disliked the original parenting arrangement result could come back to make a change every few weeks and mayhem for the children would result. Our top rated varying child parenting arrangements lawyers routinely seek and defend applications and trials for varying child parenting arrangements. Our team has set the law in this key area including Canada’s most famous child custody case Young v. Young. Contact us now to ensure the parenting arrangements are done right intitially or varied properly.
Must Be A Material Change Before Varying Child Parenting Arrangements
In the new BC Court of Appeal decision that establishes clearly the new test for varying child parenting arrangements the court was critical of the learned Chambers Judge for making a wholesale change in parenting arrangements where a similar application brought before by the mother afew months earlier was dismissed. The Court said the judge erred by failing to properly consider if there was any material change that justified varying child parenting arrangements.
What Did Williamson Say The Proper Test Is For A Section 47 Variation of Parenting Arrangements?
In the 2016 decision of Williamson v. Williamson, 2016 BCCA 87 the court explained what the test for varying child parenting arrangements should be. The official headnote for the case explained it was an appeal by a father of a huge change in parenting arrangements where the chambers judge felt serious alienation was occurring although the cause was not known:
Two children resided with each parent. The appellant father appeals an order of a chambers judge that provided that the four children participate in the Family Reflections Reunification Program (FRRP). The judge granted the respondent mother sole interim guardianship of the children; prevented the father from communicating with the children during the FRRP and after its completion until he had completed counselling offered by the program targeting his alienating behaviour; changed the parenting arrangements; and ordered he pay the costs of the FRRP. The judge found that there was “serious alienation” occurring, but did not decide which parent was responsible for it. An identical application had been dismissed by a different judge a few months earlier.
Held: appeal allowed. The chambers judge erred in hearing the application without finding a material change as required under s. 47 of the Family Law Act. Further, the judge should not have made such a drastic order without proper expert evidence to support a finding of alienation on the part of the father, and without a finding that participation in the FRRP was in the best interests of the children. The Court noted there has been criticism about this program due to the lack of peer review, as well as the qualifications of Dr. Kathleen Reay who runs the program.
The BC Court of Appeal then went on to establish the test for what must be proven before an order varying child parenting arrangements should be made.
Material Change in Circumstances
[29] In my view, the chambers judge erred in hearing the mother’s application without first finding there was a material change in circumstances. He did not consider the provision in the Family Law Act dealing with varying an order respecting parenting arrangements. Section 47 of the FLA reads as follows:
47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.
[30] While this provision differs from s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and does not use the language of a “material change”, this Court has interpreted the equivalent provision in s. 20 of the Family Relations Act, R.S.B.C. 1996, C. 128, which also did not use “material change” language, as requiring a material change in circumstances. This Court held that the two-step test from the Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 S.C.R. 27 applies despite the differences in the statutory language between s. 17(5) of the Divorce Act and s. 20 of the FRA: Boychuck v. Singleton, 2008 BCCA 355 at para. 14; M. v. M., 2012 BCCA 324 at paras. 27-29.
[31] Although this Court has yet to consider s. 47 of the FLA, the Supreme Court has consistently interpreted this provision as requiring a material change in circumstances: see for example, Gilmour v. Herrick, 2013 BCSC 1591 at para. 13; Bradley v. Bradley, 2015 BCSC 1587 at paras. 21-23; and, J.D.C. v. K.L.M.F.C., 2014 BCSC 2182 at paras. 261-262. Given the reasoning of this Court in Boychuck and M. v. M, and the similarities between s. 47 of the FLA and s. 20 of the FRA, I conclude that a material change in circumstances is required under s. 47 of the FLA.
[32] The first step in the analysis set out in Gordon v. Goertz is to “determine whether there has been a material change in circumstances since the making of the prior order”: Boychuck at para. 14. The Court in Gordon explained what is necessary to establish a material change in circumstances:
[11] 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….
[12] 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 …The question is whether the previous order might have been different had the circumstances now existing prevailed earlier…Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.
[Emphasis in original.]
[33] At para. 13, the Court summarized what the applicant must establish before proceeding on the merits of the application:
[13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[34] Absent a material change in the needs or circumstances of the child, the inquiry can go no further. It is only after this threshold is met that the judge on the new application can embark on a fresh inquiry into the best interest of the children.
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