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Separation, Communication and Co-parenting

Vancouver Calgary Child Custody Variation lawyers handle cases when parents want to change an original order on child custody and parenting time arrangements. The recent decision of S.M.M. v. J.P.H.points out the test that must be met before the original child custody or original child parenting time or responsibilities Order is varied.  The test for Vancouver Calgary Child Custody Variation is designed to prevent constant applications to change parenting time or child custody by a parent disappointed with the original order. At the same time when a material change has occurred the Court must be free to design a new Vancouver Calgary Child Custody Variation order that better suits a child’s best interest.

Executive Summary For Vancouver Calgary Child Custody Variation

Here is the test in a nutshell:

A change in circumstances must represent a clear and distinct departure from what the court knew of the circumstances or could reasonably have anticipated when making the order (Canning v. Fearn, 2000 BCSC 362). A change in circumstances will not be material unless it was not foreseen or could not reasonably have been contemplated by the judge in making the original order (Dietrich v. Kujbida, 2004 BCSC 455).

Detailed Vancouver Calgary Child Custody Variation Law You Can Use In Court 

[61]         In reasons indexed at 2016 BCCA 284, the Court of Appeal noted that Madam Justice Gray had “correctly set out the law relating to the threshold test of a material change in circumstances” necessary for variation of any order respecting custody or parenting.  Her summary of the law is found in the reasons for judgment indexed at 2015 BCSC 1666:

[66]      The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17(5), (6), and (9) provides as follows:

(5)        Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

(6)        In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

(9)        In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[67]      The Supreme Court of Canada has given guidance on the threshold issue of material change of circumstances. That is set out in the case of Gordon v. Goertz, [1996] 2 S.C.R. 27 at paras. 11-12 as follows:

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: Baynes v. Baynes (1987), 8 R.F.L. (3d) 139 (B.C.C.A); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194.

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: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”: J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

[Emphasis in original]

KEY TIP – The Change Must Be Substantial Unforeseen And Of A Continuing Nature 

So, to sum up, if you are going to be successful on a Vancouver Calgary Child Custody Variation you will need to provide the following evidence by oral testimony or in your affidavits and you might consider input from a section 211 child psychologist:

[69]      As set out in Carter v. Carter (1991), 58 B.C.L.R. (2d) 45 (C.A.), a material change must be “substantial, unforeseen and of a continuing nature”.

[70]      The overall applicable law is summarized at para. 49 of Gordon as follows:

1.         The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2.         If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3.         This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4.         The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5.         Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6.         The focus is on the best interests of the child, not the interests and rights of the parents.

7.         More particularly the judge should consider, inter alia:

(a)        the existing custody arrangement and relationship between the child and the custodial parent;

(b)        the existing access arrangement and the relationship between the child and the access parent;

(c)        the desirability of maximizing contact between the child and both parents;

(d)        the views of the child;

(f)         disruption to the child of a change in custody;

(g)        disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[62]         Amendments to the Divorce Act, R.S.C. 1995, c. 3 (2nd Supp.) are presently being considered by parliament, which will have the effect of incorporating mandatory “best interests of the child” factors very similar to those found in s. 37 of the Family Law Act.  That legislation requires consideration of all of the child’s needs and circumstances and emphasizes the need to protect to the greatest extent possible the child’s physical, psychological and emotional well-being.

Just what is a material change? It’s a tricky area, so it’s wise to consult an experienced Child Custody Variation lawyer to find out what your options are if you’re seeking or opposing a change in child custody or child parenting time.

Call us at 1-877-602-9900 to meet with us at any of our 6 offices across BC and in Calgary Alberta.