What is the test for a judge to vary a custody order?

British Columbia, Canada


The following excerpt is from C.R.H. v. B.A.H., 2005 BCCA 277 (CanLII):

The father submits that the trial judge erred in failing to determine, in a threshold inquiry, whether the mother's proposed move was not a matter that could have been foreseen or reasonably contemplated by the parties before they entered into the separation agreement. The father argues that the following test, set out in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13, ought to have been applied: 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 added.]

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