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FactsEdit

The mother appealed from the variation of a consent order with relation to access, arguing that the modification did not take into consideration the child's (a 3 year old) routine with regard to daycare, naps, etc.

IssueEdit

  1. Is a child getting older a change in circumstances under s. 17(5) of the Divorce Act?

DecisionEdit

Appeal allowed.

ReasonsEdit

Justice Helper, writing for the court, held the motions judge was entitled to take notice that the needs of a 3 year old with regard to his father are different than that of an 18-month old. She is quoted:

The needs of a child in relation to each of his parents change frequently over the years from infancy to adulthood. No court order can be crafted to address those ever-changing needs and the concerns of separated parents as they relate to their child; thus, the need for variation.

The court thus modified the access provisions to work around the child's schedule, finding that to be in the child's best interests.

RatioEdit

A change in age is a change in circumstances under s. 17(5).

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