Changing custody Orders or Agreements is only doable if your child custody lawyer can prove something called a material change in the circumstances. Be careful about agreeing to custody arrangements because once you have them on paper, it will be very difficult to change them. To learn about your rights in entering into a parenting time or custody arrangements or to change parenting arrangements, always consult with a BC custody lawyer to learn about your full rights.
Material Change in Circumstances and Custody
A material change in circumstances is something that was not contemplated by the parents when they entered in to an agreement or an Order regarding custody or parenting time. This means, you must prove that something unusual or uncontemplated has occurred which necessitates a change in the custody arrangements. The change must be major and long lasting.
The Legal Test for Proving a Material Change for Custody
The Supreme Court of Canada’s Case of Gordon v. Goertz sets out the test for varying or changing a BC Child Custody Order:
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. …The judge must assume the correctness of the initial order and consider only the change in circumstances since the order was issued.
Examples of Material Change in Circumstances and Custody
- A parent becomes an alcoholic or a drug addict
- A parent moves with the child
- The Child does not wish to have contact with a parent any more
- A parent becomes mentally ill
- A parent starts alienating the child
- A parent starts abusing the child, etc.
Changing Custody Orders Once a Material Change is Proven
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 Child Custody Order or Agreement, the judge should particularly consider factors under Divorce Act, Canada such as:
- the existing BC custody arrangement and relationship between the child and the custodial parent
- the existing access arrangement and the relationship between the child and the access parent;
- the desirability of maximizing contact between the child and both parents;
- the views of the child if appropriate;
- disruption to the child of a change in custody;
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?
The BC Family Law Act Defines the Best Interests of the Child
If the judge has found a material change in circumstance, he or she can also refer to the following elements under the BC Family Act to determine whether the custody Order should be changed:
- the child’s health and emotional well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the nature and strength of the relationships between the child and significant persons in the child’s life;
- the history of the child’s care;
- the child’s need for stability, given the child’s age and stage of development;
- the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
- the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
- whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
- the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
- any civil or criminal proceeding relevant to the child’s safety, security or well-being.
Changing Child Custody Order or Agreements is a very complicated area of family law. Before and during this process, always make sure you at least consult with a custody lawyer to know the loops and holes of custody situations and the court’s process. Contact our award-winning family lawyers or call 604-974-9529.
The content of this page was updated in August, 2017 for more accuracy, freshness and comprehensiveness.