Expiration of custody schedule in parenting order not material change: NL Court of Appeal

Presumption is that order remains in effect until child is no longer legally a child

Expiration of custody schedule in parenting order not material change: NL Court of Appeal
Passage of time, child’s age not material change in circumstance

The expiration of a stated period in a parenting order and the passage of time do not constitute a material change in circumstances warranting variation of the order, the Newfoundland and Labrador Court of Appeal has ruled.

In G.S. v. A.S., 2022 NLCA 32, the parents of a child were granted joint legal custody pursuant to a 2016 parenting order. The order also provided for a graduated schedule for parenting time for the first four years along with several recommendations.

In 2019, the father sought to vary the order, seeking sole decision-making for the child. Since the parties weren’t married, the applications judge applied the Children's Law Act, RSNL 1990, c C-13 and dismissed the application.

The act provides that a parenting order may not be varied “unless there is a material change of circumstance that affects or is likely to affect the best interests of the child.”

On appeal, the father argued whether a material change in circumstances was necessary and, if so, that such change was present in this case since the four-year period had already passed.

The Court of Appeal disagreed, finding no basis to conclude that the 2016 order expired after the four-year period, since the presumption was that it would remain in effect unless varied or until the child was no longer a child under the act. Further, in making recommendations, the judge merely allowed the parties flexibility to adjust the schedule without the need for a court order, said the court.

As to the father’s argument that the passage of time is a material change, the appeal court ruled that a child’s age, while relevant, is not an automatic basis for a finding of material change in circumstances. Neither does the mother’s readiness to discuss an increase in the father’s parenting time constitute a material change, said the court.

Several issues raised by the father were also dismissed and, upon review, the appeal court found that the application judge did not err in her analysis or conclusion that the father failed to establish a material change in circumstances to warrant variation of the order. As such, the court dismissed the appeal.

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