Changing a Parenting Order in BC When Circumstances Change

A parenting order that worked when your child was four may not fit a child of twelve. Work schedules change, new partners arrive, and sometimes one parent wants to move. When the order no longer reflects your family's life, you may be able to change it.

This article explains the legal test for changing a parenting order under BC's Family Law Act and the federal Divorce Act, what counts as a change in circumstances, how the best interests of the child guide the decision, and the practical routes to a new order.

The order stays in force until it is changed

A parenting order sets out how parental responsibilities and parenting time are shared. It remains binding even if both parents have informally drifted to a different routine. If a disagreement arises later, the written order is what a court will look at, not the arrangement you have been following.

That is why, when circumstances change, it is usually worth updating the order rather than relying on an informal understanding.

The legal test under the Family Law Act

Section 47 of BC's Family Law Act says a court may change, suspend or terminate an order respecting parenting arrangements if it is satisfied that, since the order was made, there has been a change in the needs or circumstances of the child. That includes a change resulting from a change in the circumstances of another person, such as a parent.

Two points follow from the wording:

• The focus is the child. A change in a parent's life counts when it affects the child's needs or circumstances.
• The change must have happened since the order. Circumstances that already existed when the order was made do not, on their own, meet the test.

Section 60 applies the same test to orders about contact with a child, such as time with a grandparent who is not a guardian.

To vary a final parenting order, the applicant must first establish a material change affecting the child since the previous order—one that was not foreseen or reasonably contemplated when it was made. A change alone is not enough. Once that threshold is met, the court conducts a fresh assessment of the child's best interests.

Married or divorced parents: the Divorce Act

If your parenting order was made under the federal Divorce Act, section 17 governs a variation. Under section 17(5), the court must be satisfied that there has been a change in the circumstances of the child since the order or the last variation. In Gordon v. Goertz, the Supreme Court of Canada held that this means a material change: one that materially affects the child and was not foreseen or reasonably contemplated when the order was made. A change alone is not enough. The Act deems a relocation of the child to be a change in circumstances, but a relocation the court has prohibited is not, by itself, a change. A former spouse's terminal illness or critical condition is also treated as a change in the child's circumstances.

Best interests decide the new order

Once the material-change threshold is met, the court decides what new arrangement is in the child's best interests. Under section 37 of the Family Law Act, the court must consider only the child's best interests, looking at all of the child's needs and circumstances, including:

• Health and emotional well-being.
• The child's views, unless it would be inappropriate to consider them.
• Relationships with significant people in the child's life.
• The history of the child's care and the need for stability, given the child's age and stage of development.
• Each person's ability to carry out their responsibilities.
• Any family violence and its impact on the child's safety and well-being.

Under section 37(4), a parent's conduct is relevant only if it substantially affects one of these factors. The court is not there to punish a parent. Our article on guardianship and parenting arrangements in BC explains these terms in more detail.

Changes that often lead to a review

Every family is different, but these situations commonly prompt a request to vary:

• A child's changing needs as they move from early childhood to school and then to the teenage years.
• A new work schedule, such as shift work or travel, that makes the current schedule unworkable.
• A child's stated wishes, especially as they get older.
• Safety concerns, including family violence or substance use.
• A parent's move. If a written agreement or order already applies, a planned relocation that would significantly affect the child's relationship with a guardian or another important person has its own rules. Under sections 65 and 66, the moving guardian must generally give at least 60 days' written notice. See our article on the relocation rules.

Agreements are treated differently

If your parenting arrangements are in a written agreement rather than an order, the route is different. Under section 44(4), on application, the court must set aside or replace all or part of an agreement about parenting arrangements if it is satisfied that the agreement is not in the child's best interests. A written agreement filed in court is enforceable as if it were an order, under section 44(3).

How a change is usually made

• By agreement. If both parents agree, you can set out the new terms and ask the court to make a consent order. This is often the quickest and least costly route, and mediation can help you get there.
• By application. If you cannot agree, you can apply to change the order, with evidence showing what has changed and why the new arrangement serves the child.

Evidence matters. Records of the actual schedule, school and medical information, and a clear account of what has changed since the order are more persuasive than general complaints about the other parent. A change in parenting time can also affect child support. Our article on changing a child support order explains how that side works.

Your parenting order no longer fits? Get advice before you apply

Our family lawyers can review your current order or agreement, assess whether the change in circumstances supports a variation, and help you negotiate a consent order or prepare the application.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.