What is the test for a mother who must find work to get access to her children?

I accept counsel’s submissions that the word "must" connotes necessity, and the necessity to find work or the presence of available work for her at one job in California may meet that test, especially in difficult economic times such as these. However, I will express a concern that I was less than satisfied that the mother is confronted with such necessity at a level that would engage the need to abandon the Plan A custody and access regime in favour of Plan C, given the absence of corroborating evidence on the point. This absence of corroborative evidence also arises below in connection with the necessity factor that arises under the Gordon v. Goertz tests and is considered further there.

Nevertheless, for the purposes of this motion and to permit the Gordon v. Goertz factors to be applied as the framework for a decision to be rendered in this case, as I believe should properly be the case, I have assumed that the "must" test that is present in the Settlement Agreement of the parties has been met by the mother, without deciding or adjudicating on the point, or pre-judging what another court or judge might conclude on that issue at a future time. Has the father established that there has been a material change here?

Before the motion to vary can be addressed substantively, the father must show a material change in the "the condition, needs, means, or other circumstances of the child" since the agreement was concluded: Divorce Act, s. 17(5). If the father cannot show the existence of such material change, the inquiry can go no further. The key is that the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: see Gordon v. Goertz, above. Mere change alone is not enough. Moreover, the change should represent a “distinct departure” from what the parties contemplated and anticipated or provided for in their agreement.