Varying a Custody Order
Custody Orders occasionally need to be modified; one party may want to increase their parenting time or reduce the other party’s parenting time. The Divorce Act, specifically, Section 17(5) sets out the following with respect to the variation of custody orders:
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.
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. For that threshold to be met, the judge must be satisfied of:
• a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child;
• which materially affects the child; and
• which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
If the parent fails to satisfy this requirement the application to vary the custody order will be dismissed. The Supreme Court of Canada has explained what constitutes a material change in circumstance in Gordon v. Goertz to vary parenting, specifically at paragraph 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.
Some examples of a material change are as follows:
• Either parent moves with the child.
• Either parent becomes mentally ill.
• Either parent begins to abuse drugs or alcohol.
• The child does not wish to have contact with a parent anymore.
• Either parent has a change in their employment.