The parties were granted a joint custody order in 2001 when the child at issue was almost four which gave the father every other weekend, Wednesday evenings, school holidays and part of the summer. Two and a half years prior to this hearing the parties agreed to extend the weekday access to an overnight. This hearing, approximately seven years after the original custody order, the father applied for shared parenting, one week on, one week off.
The lower court ordered a gradual variation of the parenting arrangements which extended the father's access, slowly moving to a shared parenting arrangement. The mother appealed to SKCA.
- Is a child getting older a change in circumstances under s. 17(5) of the Divorce Act?
Appeal allowed, order set aside.
Justice Smith, writing for a unanimous court, held that s. 17(5) of the Divorce Act requires a two-stage inquiry whenever one parent seeks to vary a custody order:
- the reviewing judge must determine whether there has been a change in the condition, means, needs or other circumstances of the child; the party seeking the variation bears the onus of demonstrating a material change that will adversely affect the needs of the child
- if the applicant has demonstrated material change, the judge then considers whether the material change is such that the best interests of the child require a variation of the order, and if so, the nature of the variation required
Applying this test to the case at bar, Smith found that the first step could not be passed. The mere passage of time and increased maturity of the child does not, in and of itself, amount to a fundamental change in circumstances. There was no evidence linking the child's increased maturity to her specific needs and circumstances, or that the current arrangements were not meeting her needs. Holding passage of time as a material change would lead to an automatic right to seek variation of custody orders on a regular basis every few years.
Smith takes care to distinguish the facts in this case from Elliott v Loewen; in that case there were extreme limitations on the father’s access, and the original custody order likely related to the child’s tender years. It was obvious that those limitations were no longer appropriate or in the best interests of the child as he emerged from infancy into early childhood.
- Passage of time does not in itself constitute a material change in circumstances.
- When there is a request to vary a custody order, there is a two step process:
- the applicant must demonstrate a material change in circumstances that adversely affects the child;
- if that burden is met, the court must decide if the material change in circumstances is such that the best interests of the child requires a variation of the order.