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→Changing Orders About Custody and Access
The legal test that the court must apply to set aside part of an agreement changes depending on the subject of the of the part in question. Most of the time, the court will be concerned that the agreement is in the best interests of the child.
==Changing Orders About Custody and Access==
A 1996 case of the Supreme Court of Canada called ''Gordon v. Goertz '' sets out the factors a court must consider when hearing an application to vary an order orders for custody or accessmade under the ''Divorce Act'':
*The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating first prove that there has been a material change in the circumstances affecting the child.*If the this threshold is met, the judge on the application must embark on make a fresh inquiry into assessment about what is in the best interests of the child, having regard to considering all of the relevant circumstances facts relating to the child's needs and the ability of the respective parents each parent to satisfy themthe child's needs.*This inquiry assessment is based on the findings of the judge who made the previous order and evidence of the new circumstances.*The inquiry assessment does not begin with a legal presumption in favour of the custodial parentwith whom the child mostly lives, although the custodial that parent's views are entitled to great respect.Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.*The focus is on the best interests of the child, not the interests, rights and entitlements of the parents. In other words, the applicant Applicant must show that there has been a serious change in circumstances which affects the child's best interests before a court will even consider the application. (This requirement is repeated in both the Divorce Act and the Family Relations Act.) Once this hurdle is crossed, the court will look at all of the circumstances before making a decision, as if the matter case 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 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;a custodial spouse #the parent with the children's primary residence has attempted to alienate the child against children from the other parent;a custodial spouse #the parent with the children's primary residence has repeatedly frustrated the non-custodial spouseother parent's access to the childchildren;a #the child has been apprehended by child protection workers;a #the child has been abused by the custodial parentwith the children's primary residence; and,#a mature child over the age of twelve or so has expressed a wish to live with the other parent.Note that the The courts are unlikely to change custody where the children are happy in an existing stable and secure setting.
==Changing Orders About Guardianship and Parental Responsibilities==