What is the test applicable to a custody application to vary custody?

British Columbia, Canada

The following excerpt is from Morrison v. Morrison, 2000 BCSC 1017 (CanLII):

In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, McLachlin J. (as she then was) addressed the tests applicable to applications to vary custody. She affirmed that once a material change in circumstances is demonstrated, custody and access is to be considered afresh in light of all present circumstances and in consideration of the child’s best interests. When a custodial parent relocates, or proposes to relocate, the decision to do so is entitled to respect “barring an improper motive reflecting adversely on the custodial parent’s parenting ability.” (paras. 48-50). She then summarized the law as follows, at para. 49: 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.

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