What is the test for a variation of a custody order?

British Columbia, Canada


The following excerpt is from A.J.E.P. v. C.H.P., 2003 BCSC 1169 (CanLII):

The plaintiff submits that there has not been a material change in circumstances. She relies upon the test set out in Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, where at paragraphs 9 and 13, McLachlin J., as she then was, held, as follows: The principles which govern an application for a variation of an order relating to custody and access are set out in the Divorce Act. The Act directs a two-stage inquiry. First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must enter into a consideration of the merits and make the order that best reflects the interests of the child in the new circumstances… … 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.

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