How do I change a parenting schedule?

Large hand holding the hand of a newborn baby

In A.N.H. v. L.D.G., 2017 BCSC 2099, the Honourable Mr. Justice Cole, provides the legal test to make an application to change a parenting schedule:

Variation in Parenting Time

[11]         Pursuant to s. 47 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] and upon an application, a court may change, suspend or terminate an order respecting parenting arrangements if the court is satisfied that there has been a change in the needs or circumstances of the Children, including a change in the circumstances of another person.

[12]         The first step in the analysis set out in Gordon v. Goertz, [1996] 2 S.C.R. 27, is to “determine whether there had been a material change in the circumstances since the making of the prior order”: Boychuck v. Singleton, 2008 BCCA 355, at para. 14. In order for this Court to vary an order, the Court must be satisfied there is a material change in circumstances that occurred after the original order, before proceeding on the merits of the application. The Supreme Court of Canada in Gordon explained:

[11]      The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 8 R.F.L. (3d) 139 (B.C.C.A); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194.

[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 … The question is whether the previous order might have been different had the circumstances now existing prevailed earlier… Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.

[13]      It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or 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. [Underlining in original.]

[13]         A material change is not based upon what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was made. This prevents parties from re-litigating issues that were already considered and rejected. In such cases, an application to vary would amount to an appeal of the original order:  Dedes v. Dedes, 2015 BCCA 194, para. 25.

[14]         Once this threshold is met, the court can embark on a fresh inquiry into the best interest of the children: Williamson v. Williamson, 2016 BCCA 87 at para. 34.
[15]         A “fresh inquiry” into the best interests of the Children must apply s. 37 of the Family Law Act:

Best interests of child

37  (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) 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;
(g) 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;
(h) 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;
(i) 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;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

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