Gordon v. Goertz dealt with an application to vary an existing custody and access order. It addressed typical circumstances where a child spends the preponderance of time resident with the custodial parent, with the child having access to the non-custodial parent for a shorter time period. This is distinct from circumstances where the arrangement more closely approaches joint parenting or joint custody, regardless of how it might be described. Nevertheless, as counsel for the mother emphasized, Gordon v. Goertz still requires that there has been a material change in the circumstances of the child since the last custody order was made before the court can consider the merits of the application even where the parents established a joint custody regime for the child, as in this case. This necessarily follows from subsection 17(5) of the Divorce Act which prevents the court from varying a custody or access order absent a change in the "conditions, means, needs or other circumstances of the child." Accordingly, the inquiry cannot proceed if the father is unable to show the existence of material change. Equally, however, it is important to always remember that the material change that must have taken place does not relate to the circumstances of either parent – it is exclusively focused on the circumstances of the child.
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