What is the test for a court to vary a custody and access order?

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, such as the circumstances of this case. Nevertheless, even in other factual circumstances it still requires that there have 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. 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." 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.