What is the test for a variation application?

Alberta, Canada

The following excerpt is from Tucker v. Tucker, 1998 ABCA 281 (CanLII):

In Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177, [1996] 2 S.C.R. 27, [1996] 5 W.W.R. 457, it was established that an application for variation involves a two-stage inquiry. The party seeking variation must first show a material change in circumstances affecting the child. That is, with respect, a sensible and practical pre-condition. Neither the custodial parent nor the child should be subject to the expense, inconvenience and uncertainty associated with a variation application by the non-custodial parent unless that threshold condition has been satisfied. Such a condition has the effect of screening out and discouraging unfounded variation applications. Many such applications amount to little more than harassment of the custodial parent. Others are simply attempts to have the issue of custody re-tried before a different tribunal in the hope of securing a better result. And it is not difficult for a non-custodial parent to create turmoil in the implementation of access with a view to using the conflict as the foundation for a review of custody. If a material change is demonstrated, the court must then consider the merits and dispose of the variation application in the best interests of the child in the new circumstances. If no material change is shown, the inquiry should proceed no further. In the case at bar the first condition has not been met.

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