When will a judge vary the order for sole custody?

The appellant submits that the threshold test as set out in Gordon v. Goertz (1996) 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.) was not met. Accordingly, in the absence of a material change, the learned trial judge should not have varied the previous order for sole custody as the learned trial judge was not in a position to embark on a fresh inquiry into the best interests of the child. On the other hand, the respondent submits that, while the material changes in circumstances "were not overtly expressed in the Reasons for Judgment", the learned trial judge made it "abundantly clear" that there were material changes in the circumstances including: (a) "the child's deteriorating academic performance" and (b) the increasingly loss of contact and bonding between the child and his father."