Wiegers v. Gray 2008 Sask. C.A. – The Effect of the Passage of Time

The parties in this case separated and an order was made with respect to the custody and access arrangement of the two children of the marriage, M and A. The subject of the appeal was with respect to the order of M only.

The original order was made in May 2001 when M was almost four years old. The order provided for joint custody of M. The mother was to have primary care of M and the father was to have liberal access to M based on an access schedule.

The father brought an application to vary the parenting arrangement and this was heard in January 2007, when M was 9 ½ years old. He sought an order to the effect that he would share equally in parenting M on a seven day rotation. The father expressed discontent with the present situation claiming that the mother had an inflexible attitude with respect to access. The mother denied these allegations and also took the position that there was no material change in circumstances that would permit the court to make any variation.

The chambers judge felt that it was common sense that in five years M had matured and grown up and as such there was a material change in circumstance warranting a variation of the original order. The chambers judge claimed that this common sense approach was supported by the jurisprudence. She concluded that the order should be changed to move the parties substantially closer to an equally shared parenting arrangement.

The mother appealed the decision of the chambers judge arguing that she erred in finding a material change in circumstances since May 2001 when the original order was made. The appellant mother argued that the increased maturity of M alone did not constitute a material change in circumstances.

The appeal judge began his analysis by reviewing the relevant legislation. Section 17 of the Divorce Act basically reads that an order regarding custody can be varied in the following circumstances; there has been a material change in the circumstances of the child and varying the order would be in the child’s best interest. The appeal judge noted that the change must be in the child’s circumstances, not merely the circumstances of the parties.

The appeal judge found no evidence that M’s needs were currently not being met. Furthermore, much of the material filed detailed changes in the respondent father’s life, not the circumstances of M. The appeal judge noted that the chambers judge only focused on the increased maturity of M but did not determine if M’s needs had changed. In addition, the chamber judge had failed to consider whether varying the original order was in the best interests of M. As such, the appeal judge concluded that the chambers judge erred in finding a material change in circumstances based on the passage of time alone.

The appeal judge then explained why there were good policy reasons not to view the mere passage of time as a material change in circumstance. Few parties have financial resources to re-litigate the issue of custody and access and it is often in the best interests of the child to have a stable and predictable parenting arrangement. If the passage of time in itself qualified as a material change in circumstances, there would be an automatic right to seek variation of custody orders every few years.

This Post Has 2 Comments
  1. This case is an excellent reminder to parents who are going to court wanting to change custody or access orders that it is all about the child(ren), not the parents. If you are going to take the time and go to the expense of going to court to vary an existing custody and/or access order remember that the test requires that you show that there has been a change in the condition, means, needs or other circumstances of your child, not you. As the person seeking the variation, you need to show that the material change will adversely affect the needs of your child, not you. Focus your materials to show that the material change is such that the best interests of your child, not you, requires a judge to vary the order, and to what extent.

    To me, this case suggests to parents contemplating asking a court to vary a custody and access order that going to court to request a change for change sake is not time and money well spent.

  2. This case represents the general tension in family law between certainty and finality of Court Orders and the flexibility to alter arrangements as children grow and families transform. I appreciate and understand the Appeal Judge’s findings, and agree that allowing parties to make changes to their custody and access arrangements based simply upon the fact that their children age would open a Pandora’s Box and would provide litigants more opportunities to attempt to reopen their matters. When parties negotiate settlements, they must think about how it will look as their children age, and cannot rely on this fact alone as a reason to re-evaluate their arrangements. However, I do believe that there are other factors to consider in a situation like this. For example, I typically recommend that clients with very young children stay away from complicated shared custody regimes, as they are not usually in young children’s best interests. This advice changes, however, as children get older and more mature. I suppose that, based on this case, the solution is to build this as a material change in circumstance in Separation Agreements.

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