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Family Law - Custody and access - Considerations - Best interests of child - Custody - Primary residence - Practice and procedure - Orders - Variation or amendment of orders - Changed circumstances

Thursday, February 09, 2017 @ 7:00 PM  


Appeal by the paternal grandparents from an order varying the child’s primary residence. The parents lived in a common law relationship for approximately 18 months. They had one child, age seven. Shortly after the child was born, he suffered head trauma and underwent surgery. Both parents denied responsibility for harming the child. The mother was charged with assault, but the charges were later withdrawn. After the parties separated, Child and Family Services (CFS) intervened. They placed the child in foster care and then in the care of his paternal grandparents. After a period of supervision, the father assumed primary residential parenting. The mother continually took steps to resume parenting. In January 2016, the father was charged with assaulting the child. The mother then applied to vary the parenting order so she could have primary residential parenting of the child. The paternal grandparents opposed her application and sought guardianship of the child in order to continue day-to-day parenting of the child along with the father. The trial judge found that there had been a change of circumstances as the child was older, the father had been convicted of assaulting the child and the mother was in a stable marriage. She found that while both the mother and the paternal grandparents were able to provide a stable, responsible, caring home for the child, it was in his best interest to reside with the mother. As a result, the judge ordered that the child’s primary residence was to be changed from the home of the father and grandparents to that of the mother. The grandparents appealed, arguing that the trial judge erred by using the fitness test rather than the best interests test and by failing to take material evidence into account. They further argued that the trial judge erred by recognizing the mother as a guardian without first reviewing whether she was a guardian after the parenting order which gave the father full decision-making rights.

HELD: Appeal dismissed. The trial judge specifically articulated the test for changing a parenting order, as well as the factors listed in s. 18(2) of the Family Law Act concerning the best interests of the child. The trial judge made no legal error in her consideration of the legal principles applicable to an application to change a parenting order. Furthermore, she took a thorough and balanced approach to weighing the evidence. The trial judge correctly concluded that the mother had been the child’s guardian since birth and continued to be his guardian.