Maggie House- Varying Parenting Time Orders, Published January 17, 2024
You might not like what a judge has to say. So can you get it changed? Like most questions in law, the answer is: “it depends”.
Whether, how, and by what standard a court will vary an order will depend on whether the order is final or interim, whether it was made under the Divorce Act or the Family Law Act, whether it was by consent, and also what type of order it is you are seeking to vary (e.g. a parenting order, a child support order, a spousal support order).
This blog looks specifically at whether and when you can vary a final parenting time order made under the Family Law Act (“FLA”).
The test for varying parenting orders is set out in FLA s 47:
On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.
Courts have interpreted “change” as being more than just any change, but a “material” change in the child’s needs or circumstances: Williamson v Williamson, 2016 BCCA 87 at para 31. The Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC),  2 S.C.R. 27 said the following:
Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way…. Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated making the previous order.
Further, underpinning all decisions about parenting time is the “best interests of the child”. The FLA sets out the child’s bests interests factors that a court must consider when making a decision about a parenting time order at s 37(2):
(a)the child’s health and emotional well-being;
(b)the child’s views, unless it would be inappropriate to consider them;
(c)the nature and strength of the relationships between the child and significant persons in the child’s life;
(d)the history of the child’s care;
(e)the child’s need for stability, given the child’s age and stage of development;
(f)the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person’s responsibilities;
(g)the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h)whether the actions of a person responsible for family violence indicate that the person may be impaired in the person’s ability to care for the child and meet the child’s needs;
(i)the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j)any civil or criminal proceeding relevant to the child’s safety, security or well-being.
To boil it down, if you want to change a parenting time order under the FLA, something significant needs to have changed since the order was made to warrant your request and what you are asking for needs to be in the child’s best interest.
Let’s look at a few examples of….
Children expressing distress at being away from their mother in another city during the father’s parenting time was a material change in in DFM v JKA, 2023 BCSC 613. The father argued that the travel was contemplated at the time that the parties entered into the final order by consent. The judge rejected the father’s argument noting that one of the children was self-harming and the other needing trauma counselling since the parenting order was put in place which was not contemplated or foreseeable and was a material change.
In Wong v. Rooney, 2020 BCSC 1387, the court held that the child’s enrollment in full-time elementary school taken together with change to the parties’ work schedule constituted a material change in the child’s circumstances.
The applicant father’s significant change in his work schedule constituted a material change in
circumstances within the meaning of FLA s 47 in KSL v SAL, 2021 BCSC 902.
A mom’s move from Surrey to Aldergrove in PM v SC, 2022 BCSC 1030 (CanLii) was found to be a material change. This was because the children were required to change schools and also had a greater travel distance to spend time with their dad during his parenting time because of the move.
Not enough change
The court rejected the father’s application for increase in his parenting time in JLW v SGW, 2021 BCSC 1882 (CanLii). In this case, the father had parenting time starting on each Wednesday morning through to Friday afternoon. The father argued that there had been a material change since the final order was made: first, that his work schedule had changed and he now had weekends off from work; second, he purchased a house whereas he was previously renting; and finally, the child was older and able to walk and do more activities. The judge found that the father’s application was a mere attempt to resile from the consent terms in the final order.
In Callaghan v Charbonneau, 2021 BCSC 1524, the court dismissed the father’s application to vary the parenting time order. The father argued that a change in his work schedule was a material change in circumstances. The court disagreed. (Affirmed on appeal: 2022 BCCA 167).
Not everything is cut and dry when you are seeking to vary a final order about parenting time. Sometimes a set of circumstances – such as a move, or a change in a parent’s work schedule – will be enough, and sometimes it will not. How a judge will decide on whether there has been a material change, and whether variance is in the child’s best interest is fact-specific and context-dependent.
Disclaimer – The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.