Vancouver Child Custody Material Change Lawyers handle variation of child custody, guardianship and parenting time and responsibilities cases. The multiple award winning Vancouver Child Custody Material Change Lawyers at MacLean Law are celebrating 40+ years in family law led by founder Lorne N MacLean, QC. Our Vancouver family lawyers have handled thousands of child custody disputes since MacLean Law’s inception and we are proud to have help set the law on Canadian child custody in famous cases such as the leading SCC child custody case of Young v. Young in which we won sole custody, 100% of the family home, support and special costs for our client.
Vancouver Child Custody Material Change Lawyers Explain: How do you prove a material change in circumstances for the custody of your child?
In today’s blog rising star Rana Yavari of our Vancouver Child Custody Material Change Lawyers team provides a tight summary of what must be proven to change an order. To avoid constant applications to court by a disappointed party the test to make a change in chiold custody must be strict. To read more on child guardianship tips and traps click here.
Vancouver Child Custody Material Change Lawyers
In recent years, mobility cases, cases in which one parent wishes to move to a new location with the children and the other parent is opposed, have been the subject of much judicial scrutiny and comment. Our Vancouver Child Custody Material Change Lawyers stress that if a custody arrangement is in place and the parent wishes to modify it, a material change in circumstances must be proven. A material change in circumstances is something that alters the conditions of the child’s life significantly enough that it may change the Court’s decision as to what is in the child’s best interests. Before the Court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made.
Vancouver Child Custody Material Change Lawyers – Statutes
Pursuant to section 47 of the Family Law Act (“the FLA”) :
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.
The leading case of Gordon v. Goertz, [1996] 2 S.C.R. 27 has established a two stage test for varying or changing a child custody order:
- the applicant must show that there has been a material change in circumstances affecting the child (in practice an impending move which will alter the child’s life is usually a sufficient change in circumstances to meet this test); and
- if this test is met, the applicant must show that allowing the move would be in the best interests of the child
The Threshold Condition: Material Change
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: 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.
Therefore, before entering on the merits of an application to vary a custody order, the Court 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.
Best interests of the children
The primary factor to consider in a mobility case is what is in the best interests of the children taking into account all of the circumstances in each case. There are a number of factors that Courts consider:
(1) the existing custody arrangement and the relationship between the child and the custodial parent;
(2) the existing access arrangement and the relationship between the child and the access parent;
(3) the desirability of maximizing contact between the child and both parents;
(4) the views of the child;
(5) the custodial parent’s reasons for moving (in appropriate cases); and
(6) the disruption the move would cause for the child.
