Where a custody or access arrangement, agreement or order (S.16(1) Divorce Act 1986) has been made, an application can be made to the Divorce court by custody lawyers on behalf of one or both parents to prospectively or retrospectively vary, rescind or suspend any arrangement, agreement or order. A third party may also make this application but only upon leave granted by the Divorce Court.
As a general guideline in order for any application to vary, rescind or suspend a Custody/Access order, arrangement or agreement to be successful, there must be a provable material change (affecting the child(ren)) in the circumstances of either one of the spouses. The most important consideration that must be made by the Court in making any change in the custody/access agreement or order is the ‘best interest of the Child’. In order to assure that the ‘best interest of the Child’ is kept at the forefront of considerations made by the Court, a 7-point test is relied upon by the courts. The test is as following;
TEST FOR CHANGE IN CUSTODY OR ACCESS:
1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. 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 the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. 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.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
Keeping the above mentioned in mind it is recommended that the services of a custody lawyer be obtained in order to best communicate the position of the litigant and how the position best reflects the ‘best interest of the child(ren)’
For more information please contact one of our Family lawyers in Markham today for a free consultation.
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