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→Divorce Act orders
===''Divorce Act'' orders===
Under [http://canlii.ca/t/7vbw#sec5 section 5] of the ''[[Divorce Act]]'', the Supreme Court can vary ''Divorce Act'' orders for custody parenting or access contact made anywhere in Canada, as long as the person making the application, the ''applicant'', normally lives in British Columbia when the application is made or if both spouses agree to have the application heard in British Columbia. If the child has deeper roots and greater social ties in the other province, the court is likely to refuse to make the requested order and instead order that <span class="noglossary">a transfer of</span> the matter to be heard there.
[http://canlii.ca/t/7vbw#sec17 Section 17] of the ''[[Divorce Act]]'' gives the court the authority to hear and decide variation applications. Under this section, the court may vary, cancel, or suspend support, parenting, or contact orders dealing with custody and access.
<!-- HIDDEN OLD DIVORCE ACT HAS CHANGED ON MAX CONTACTSection 17 of the ''[[Divorce Act]]'' also sets out the test for the variation of custody parenting orders and access contact orders, and the principle that it is in a child's best interests to have maximum contact with each parent. This section provides, in part, as follows:
<blockquote><tt>(5) Before the court makes a variation order in respect of a custody parenting order or contact order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests or of the child as determined by reference to that changean order made under subsection 16.5(9).</tt></blockquote>
<blockquote><tt>(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.</tt></blockquote>
*the test is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the original order was made.
END HIDDEN CONTENT-->
====Changing parenting orders under the ''[[Divorce Act]]''====
*If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of each parent to satisfy them.
*This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents.
In other words, the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the application. The change must have altered the child's needs or the parents' ability to meet those needs in some fundamental way. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the matter was being heard for the first time. Most importantly, this means that there is no automatic presumption in favour of the ''status quo''.
Cases where an a parenting order for custody has been varied include circumstances such as where:
*the change is in the best interests of the children in the long run,
*the parent with custody the most parenting time has attempted to alienate the child from the other parent,*the parent with custody the most parenting time has repeatedly frustrated the other parent's access to contact with the child,
*a child has been apprehended by child protection workers,
*a child has been abused by the parent with custodyparenting time, and
*a mature child over the age of 12 or so has expressed a wish to change their living arrangements (i.e.: wants to spend more time with the other parent).
The court is unlikely to change custody a parenting order where the children are happy in an existing stable and secure setting.
====Changing contact orders about access under the ''[[Divorce Act]]''====
''Gordon v. Goertz'' also applies to changing access contact orders: the applicant must show that there has been a serious change in circumstances that affects the child's best interests before a court will even consider the matter. Once this hurdle is crossed, the court will look at all of the circumstances before making a decision as to access, as if the issue was being heard for the first time, with no presumption in favour of the ''status quo''.
*the child has grown up a bit and is more able to spend more time away from the parent with custodyparenting time,*one of the parents has been frustrating accesscontact with the child,
*a parent is constantly late or cancels visits frequently,
*a parent has moved and the existing access parenting schedule is no longer convenient, or
*a mature child over the age of 12 or so has expressed a wish to see the other parent more or less often.
====Statutory provisions====
These are the primary sections of the ''Divorce Act'' dealing with varying an order about custody parenting time or accesscontact:
*s. 2: definitions
*s. 5: jurisdiction in variation proceedings
*s. 16- 16.96: best interests of the child, parenting and contact orders for custody and access, change in place of residence*s. 17: varying variation, recission or suspension of orders
===''Family Law Act'' orders===