In our recent July 21, 2005 article on separation agreements and BC child custody and BC child guardianship and BC child access we opined that the test to vary a BC separation agreement’s custody terms was now higher than the test to vary a custody order under the Gordon v. Goertz test. The Alberta decision of Hearn applied the Miglin test for variation of a custody agreement and a similar test was applied by Martinson J in L.E.G v. A.G. but a recent BC Court of Appeal decision reflects a more traditional approach to custody arrangements made in separation agreements and applies a much lower test to vary. In the 2005 case of Henderson, the BCCA held as follows:
[37] In A.L. et al. v. D.K. et al. (2000), 190 D.L.R. (4th) 108, 2000 BCCA 455, Finch J.A. (as he then was) for the majority (Newbury J.A. concurring in separate reasons, but not disagreeing with the majority on this point), considered the legal force of a separation agreement in relation to subsequent orders of the court. In A.L. v. D.K., supra, the parents of the child had entered into an agreement by which the child’s aunt and uncle were given sole custody of the child. The agreement also stipulated a form of joint guardianship with all four parties as guardians. The trial judge awarded custody to the child’s natural father and granted the mother reasonable and generous access. The aunt and uncle were also granted access. In appealing the order, the aunt and uncle argued that the trial judge “should not have ordered a change of custody when there had been no change in circumstances since the agreement of 23 September, 1997” (at para. 7). This Court considered whether the “material change in circumstances” test set out in Gordon v. Goertz, supra, ought to have been applied by the trial judge with respect to the custody agreement. The Court distinguished Gordon v. Goertz:
[9] In Gordon v. Goertz there was a prior order granting the mother permanent custody. It was in the context of that prior order that the court held that a parent applying for a change in custody must show a material change in circumstances affecting the child.
[10] The petitioners now contend that the same threshold test must be met where existing custody is based on an agreement between the parties. They cite Carter v. Lavalee, [1998] B.C.J. No. 1355 (Q.L.) (B.C.S.C.)… where Gordon v. Goertz was applied, without discussion.
[11] In Kamimura v. Squibb (1988), 13 R.F.L. (3d) 31, Mr. Justice Hinds (as he then was) said at p.36:
An agreement between the parents concerning the custody of their children cannot oust the jurisdiction of the court to determine the issue of custody. The court must base its decision with respect to custody on the overall best interests of the children. That is not to say, however, that an agreement between the parties of children concerning their custody is not an important factor to be taken into consideration.
[12] This passage was cited with approval by Mr. Justice Bauman in Linnell v. Linnell, [1997] B.C.J. No. 1579 (Q.L.) (B.C.S.C.)…
[13] In my respectful view, Hinds, J. put the issue correctly. Where no prior order for permanent custody has been made, a court’s order for custody must be based on a full and balanced consideration of all factors touching on the best interests of the child. An agreement concerning custody between contending parties is an important factor to take into consideration, but it is only one factor.
[16] I am satisfied on an examination of the trial judge’s reasons that he did consider carefully the agreement of 23 September, 1997 concerning M.’s custody, and that he gave to it the weight he considered to be appropriate in light of the many other factors he had to take into account. I would not give effect to this ground of appeal.
[38] The test set out in Gordon v. Goertz, supra, again, is this:
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.
[39] The Court in A.L v. D.K.,supra, determined that the “material change of circumstances” test was not applicable in respect of agreements as opposed to court orders. It follows that the second and third parts of the threshold inquiry set out in Gordon v. Goertz, supra, do not apply directly, for the same reasons.
[40] The third part of the test, which the father argues was not met in this case, has no direct application. The agreement is to be taken into account in the consideration of the best interests of the child, but it is only one factor, albeit an important one. It does not constitute a threshold inquiry; rather, the guiding inquiry is the best interests of the children.
[41] In A.L v. D.K., supra, the Court concluded that the trial judge had considered the custody agreement, and that he had given it the weight he considered appropriate. In this case, the trial judge referred to the fact that there was a separation agreement which included provisions regarding the children and then weighed it as a factor relevant to the ultimate issue of the best interests of the children. It is evident that the separation agreement received consideration in this case for the trial judge held that the terms of the separation agreement would apply, except to the extent of the modifications he ordered in relation to the mother’s proposed move. The trial judge stated:
[22] The terms of the separation agreement pertaining to the children will continue to apply save and except that [the father] will have access to the children on all non-school days that coincide with his days off work.
[42] In summary, the terms of the separation agreement were obviously considered in this case and the trial judge was entitled to assign to the agreement the weight he thought appropriate in light of the many factors that pertain to the best interests of the children, per A.L v. D.K., supra. The trial judge committed no error in failing to engage in a Gordon v. Goertz threshold inquiry.
The Henderson decision, if followed, by BC Courts will render many negotiated settlements of less effect than the more stringent analysis applying Miglin’s penchant for upholding freely negotiated custody settlements. We believe future decisions may well apply the more stringent test our Supreme Court of Canada has applied to BC support and BC property agreements.
