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Family Law - Custody and access - Practice and procedure - Orders - Variation or amendment of orders -

Thursday, July 07, 2016 @ 8:00 PM  


Appeal by the mother from an order of a motion judge significantly varying the parties’ access regime after the mother was found in contempt. The motion judge had accepted that the father had missed 122 days of access and ordered that, in effect, the mother purge her contempt by transferring 122 days of her custodial access to the father in the ensuing two years. The access schedule was to be based on the schedule of the father and not, as provided in the 2013 order, based on the mother’s work schedule. The mother was to give the father between three to five additional overnights each month beyond what was provided for in the 2013 order and some of the time allocated to her during the children’s school breaks.

HELD: Appeal allowed. New hearing ordered. It was unclear from the motion judge’s reasons and the terms of the order whether that order was intended as a penalty for the mother’s contempt, a variation of the custody order, or a stand-alone order delaying the penalty phase and specifying what the mother must do to purge her contempt and ordering it to be done within 24 months. The order effected substantial changes to the custodial arrangements of the children and ought not to have been made without evidence of the children’s current circumstances, and careful consideration of that evidence, to determine what was in their best interests. The amount of make-up ordered by the motion judge was well beyond what could have been reasonably contemplated by the 2013 order. It significantly altered the balance established by that order for the two parents’ contact with their children for two years. The motion judge’s decision appeared to be based simply on the premise that each day missed by the father must be made up within the following 24 months, without considering the impact that such a large shift would have on the children.