Changing a Parenting Order in Regular Chambers
The Alberta Court of King’s Bench Family Law Practice Note 2 sets out the requirements for filing an Application to be heard in Family Law Regular Chambers. Except in cases of urgency, the Court will not hear Applications for (1) change of custody, (2) substantial changes to parenting arrangements, or (3) retroactive child or spousal support for a period exceeding 6 months in Regular Family Chambers. Rather, these matters must be heard in Special Family Chambers.
The Alberta Court of Appeal in HG v RG, 2017 ABCA 89, acknowledged that regular family chambers is not the optimal place to decide a parenting order when there is conflicting evidence, and at paragraphs 9 and 10, opined as follows:
- There is a good reason for the rule that substantial changes to parenting arrangements are not to be made in regular chambers: children deserve better than that. A judge in regular chambers does not have the opportunity to read the affidavits in advance, is not in receipt of written submissions, and is ill positioned to resolve competing affidavit material….
- We recognize that there are cases that must be decided on an urgent and interim basis without a full and proper hearing. Sometimes an interim parenting order may need to be made in regular chambers in the face of conflicting affidavit evidence to determine what parenting regime is in the best interest of the children pending a viva voce hearing or trial.
The Alberta Court of Appeal in M(LD) v T(WF), 2017 ABCA 106 soon after endorsed the principle set out in HG v RG, and provided further direction that interim orders made in regular family chambers, particularly “interim without prejudice orders”, should focus on maintaining the status quo pending a proper hearing.
What about the best interests of the child, which is to be the only consideration of the court in making an order for custody or access pursuant to section 16(8) of the Divorce Act, RSC 1985, c 3 (2nd Supp)?
One of the issues on review by the Alberta Court of Appeal in Krause v Krause, 2018 ABCA 293, was whether the chambers judge in dismissing an Application to change the parenting arrangement in regular family chambers erred by failing to consider the best interests of the child. The Court of Appeal summarized that the chambers judge properly inquired as to whether there was an urgent need to change parenting because of safety concerns and upon determining there was no urgency, did not inquire further as the child’s best interests. The chambers judge considered the Child and Family Services investigation and report, the interim without prejudice consent order, and inferentially, the evidence before him. The Alberta Court of Appeal found that in taking such steps, the chambers judge did not err in law by failing to consider the best interests of the child.
In contrast to the cases set out above, the recent decision of LAS v WRS, 2019 ABCA 65 provides an example of the Alberta Court of Appeal upholding an interim order granted in regular chambers varying parenting time pending a special chambers hearing. The mother argued on appeal that the chambers judge erred in making a substantial change to the existing parenting order when no urgency existed.
In coming to its decision, the Alberta Court of Appeal cited the principle set out in HG v RG, but qualified further as follows:
- However, this is not a bright line rule. Certain variations to parenting orders or initial, interim parenting orders may be appropriately granted in regular chambers. First, Practice Note 2, para 8 addresses substantial changes to parenting arrangements. Secondly, there will always be exceptional circumstances that warrant such orders.
The Court of Appeal found that chambers judge had not erred in removing the supervision requirement from some of the father’s parenting time, finding that the change was not substantial but rather was a logical and incremental next step based on the evidentiary evidence and a review of the prior order.