I Want to Change My BC Child Custody Order! Need More Parenting Time

Be careful about entering into BC Child Custody Orders or Agreements. It can be difficult to change them. You are encouraged to hire a BC family lawyer to fully inform you of your rights and obligations regarding child custody before entering into agreements.

I come across many situations where a parent is not happy with his/her children’s custody arrangements or the agreement/court order. If you want to change your BC child custody order to get more or less time with your children, you need to know about these 3 important factors:

 Prove a “Material Change” Before Changing BC Child Custody Orders

The BC Courts do not want parents coming to court all the time to change child custody. That is why they say once an agreement or a court order is done, the parent wishing to change child custody must prove what is called a ‘material change’.

A material change is something that was not within the contemplation of you and your spouse when you entered in to an agreement. This means, you must prove that something has changed which would justify a change in the order or agreement.

The Supreme Court of Canada’s Case of Gordon v. Goertz sets out the test for varying or changing a BC Child Custody Order:

First,

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 (1) 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, (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. …The judge must assume the correctness of the initial order and consider only the change in circumstances since the order was issued.

What Is a Material Change that Would Change the BC Child Custody Order?

Examples are as follows:

1. A parent becomes an alcoholic or a drug addict
2. A parent moves to another province or country
3. The Child does not wish to have contact with a parent anymore
4. A parent becomes mentally ill
5. A parent starts alienating the child
6. A parent starts abusing the child
7. A parent becomes a better parent, etc.

If You Can Prove that a Material Change Has Occurred, the Judge Must Determine BC Child Custody From Scratch

If a material change is proven, the judge must embark on a fresh inquiry into the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the parents to satisfy them.

The focus of the inquiry is not the interests and rights of the parents. Each case turns on its own unique circumstances and the only issue is the best interest of the child in the particular circumstances of the case.

The judge must not assume that the current custody in favour of the custodial parent is a good arrangement. Both parents bear the evidentiary burden of demonstrating where the best interests of the child lie.

In assessing the best interests of the child or changing the BC child custody Order, the judge should more particularly consider:

1. the existing BC custody arrangement and 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 if appropriate;
5. the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
6. disruption to the child of a change in custody;
7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

BC Child custody is a very complicated and important issue that must be approached with caution and proper legal advice. Do not enter into agreements or Court orders that you may regret later.

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