The Case
The parties were married for ten years and have four children. In 2013, a final consent order determined that the parents would have joint custody and that the children would reside primarily with their mother. Their father would have parenting time on alternating weekends. The mother sought to increase child support, and, in response, the father requested that the parenting schedule be altered to reflect a more balanced schedule.
The Children’s Preferences
A Voice of the Child report was prepared and the three older children (ages 17, 15, and 13) were consistent in their views and preferences. They indicated that they wanted more equal parenting time with both parties. The youngest child (7) voiced the same opinion, but seemed more hesitant in doing so.
Their mother expressed that she is concerned because the children spend so much time with their parental grandparents during the father’s parenting time. Also, the father has missed access visits in the past, and his work schedule prevents the children from properly attending their daily activities. The mother also argued that the children’s views and preferences – as outlined in the OCL report – were not accurate, though she did not offer any evidence that supports this view.
The Judge’s Conclusion
Pursuant to section 17 of the Divorce Act, the father must establish that there has been a change in the condition, means, needs or other circumstances of the children which materially affects them. Orders with respect to custody and access may be varied pursuant to section 29 of the Children’s Law Reform Act. Also, Rule 16 of the Family Law Rules provide that a party may make a motion for summary judgement for a final order without a trial on all or part of any claim made, or any defense presented in the case.
The judge concluded that the parenting arrangements for the three eldest children were not a triable issue because their views and preferences were independent and neutral. However, the 7-year-old child is very young and has ADD, so the judge felt that he couldn’t make a similar determination and have it truly reflect the child’s best interests. This was therefore a triable issue. As such, the motion was permitted in part, and summary judgment was granted regarding the three eldest children.
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