Varying Child Custody Parenting Arrangements is an emotional and complex area of family law. In today’s blog MacLean law founder, Lorne N. MacLean, QC winning counsel in Young v. Young, Canada’s leading child custody case, explains the rules involved in obtaining or refusing an order Varying Child Custody Parenting Arrangements. The test for Varying Child Custody Parenting Arrangements is a high one to prevent disappointed parties from routinely returning to court with the hopes they may obtain a better outcome from another judge within a very short time period.
Varying Child Custody Parenting Arrangements cases are always tough and confusing for the parties. Call our award winning family lawyers today in Vancouver, Calgary, Surrey, Richmond, Kelowna and Fort St John, BC toll free at 1-877-602-9900.
The Test For Varying Child Custody Parenting Arrangements
Barring a successful appeal from the order of child custody and parenting arrangements a spouse seeking to vary an order must show a substantial change in the conditions means and circumstances of the parents or the child has occurred since the last Order which if known at the time of the last order would have led to a different result. There are also additional rules for varying parenting arrangement and child custody agreements that have and that have not been filed with the court.
The recent decision of Leiding v. Leiding 2016 BCSC 2567 went over what the Divorce Act and the Family Law Act have to say on the issue of variations of child custody orders together with what Judges have developed for Varying Child Custody Parenting Arrangements. The judge also commented on what the impact of a filed or unfiled written parenting agreement has on the court’s powers to vary existing child custody and parenting arrangements.
Step 1 – Determine If There has Been A Material Change Before Varying Child Custody Parenting Arrangements
Legal Framework
[16] It is well-established in family law jurisprudence under the Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.) and the Family Relations Act, R.S.B.C. 1996, c.128, s. 22(1) that in order to vary an order of the court regarding custody, support and parenting arrangements for children, there must be a material change in circumstance which has altered the children’s needs or the parents’ ability to meet those needs in a material way.
[17] The requirement that there be a material change in circumstance to vary an order of the court has been expressly incorporated into the Family Law Act, S.B.C. 2011, c. 25 (FLA). Under s. 47 of the Act, the court may change the terms of an order respecting parenting arrangements where there has been a change in the needs or circumstances of the child…
[18] In Williamson v. Williamson, 2016 BCCA 87, the Court of Appeal reaffirmed what is necessary to establish a material change in circumstance:
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.
How Does An Agreement Affect Varying Child Custody Parenting Arrangements?
[19] Where parenting arrangements are included in an agreement between the parties, the agreement is binding on the parties by virtue of s. 6(3) of the Family Law Act. Notwithstanding that the agreement is binding between the parties, s. 44 of the Act provides that a court must, on application by a party, set aside or replace all or part of an agreement respecting parenting arrangements if it is satisfied that the agreement is not in the best interests of the child, as described in s. 37. What
[20] Section 214 of the Act provides that if an order is made to set aside part of an agreement that part is deemed to be severed from the remainder of the agreement, and the court may make orders to replace that part of the agreement and provide that the remainder remains effective.
[21] Section 49 of the Act contains a general provision allowing a child’s guardian to apply to the court for “directions respecting an issue affecting the child”. The court has the discretion to make an order “it considers appropriate”.
When No Material Change Is Proven There Will Be No Order Varying Child Custody Parenting Arrangements
Issues
[22] The preliminary issue which the claimant has raised and I must consider is whether there has been a material change in circumstance in order for the court to consider the respondent’s application to vary the terms of the parties’ settlement agreement.
[23] Should I find that the court can consider all or part of the respondent’s application, I must then consider whether any part of the separation agreement should be varied as proposed, and whether the provision of the separation agreement which provides for spousal support should be set out in the form of an order.
[24] I would add, parenthetically, that there is a possible issue with respect to the manner in which this application was brought by the respondent. As noted above, his application was brought as a summary trial. However, under Rule 10-5(2), of the Supreme Court Civil Rules, where an applicant seeks to vary or replace the whole or any part of an agreement which was filed under R. 2-1, it is to be brought under Rule 10-5, Halliday v. Halliday, 2015 BCCA 82 at para. 59. While the agreement was not filed under Rule 2-1, the parties had agreed that it was to be filed as a consent order. That said, as this matter was not raised by the parties and, in any event, the form of the application will not affect the result, I will proceed to determine the matter in the form in which it was filed.
[32] Applying that test, I am not persuaded that there has been a material change in circumstances since the parties entered into the settlement agreement. It has been less than three years since the agreement was concluded. The children’s needs and the parties’ ability to provide for their needs have not significantly changed. The evidence before me simply does not support the conclusion that there has been a material change in circumstances. I note, as well, that the matters in the separation agreement which the respondent now wishes to vary, were matters that were addressed in the separation agreement. As noted by Mr. Justice Edwards in E.G. v. F.B.G., 2004 BCSC 564, courts must be cautious in replacing a workable custody arrangement contained in a separation agreement with a court-imposed custody order in the absence of evidence justifying judicial intervention.
When children are involved the stakes are high for their parents and for the children themselves.
Both parents want what is best for their children. If you have a tough family case involving an application for or the defence of an application Varying Child Custody Parenting Arrangements it pays to hire a top notch Varying Child Custody Parenting Arrangements lawyer.
