510
edits
Changes
→Changing orders under the Divorce Act
<blockquote>[17] The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh without defaulting to the existing arrangement. The earlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of material change presupposes that the terms of the earlier order might have been different had the change been known at the time. The judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances to decide what custody arrangement now accords with the best interests of the child. The threshold of material change met, it is an error for the judge on a variation application simply to defer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in the circumstances that presently exist.</blockquote>
(Under the old ''Divorce Act'', the law that was in place before the changes to the ''Divorce Act'' took effect on 1 March 2021, "decision-making responsibility" was known as ''custody'' and "parenting time" and "contact" were known as ''access''. Older orders that use the terms "custody" and "access" are still good and don't need to be updated to the new language. If you have an older order that says you have custody, you now have decision-making responsibility for your children. If you are or were married to your ex and have an order that says you have access, you now have parenting time.)
Whenever the court is asked to make an order about parenting and contact, section 16(1) of the act requires the court to consider only the best interests of the child. The factors to be taken into <span class="noglossary">account</span> in considering the best interests of the child are set out at sections 16(3) and 16(4).