What is the impact of a finding that there has been no material change in circumstances that affect the child?

As is often the case, (as indicated in the dissenting decision of Wakeling J.A. in Wilson v. Grassick, supra) the statement of a principle of law is relatively simple. It is the application of it to a specific set of facts that is more difficult. In my respectful view, trial judges too often lower the bar of the threshold that an applicant must meet before they enter into a consideration of the application on its merits. Often no determination is made before trial as to whether the applicant can meet the threshold. The determination is almost always made after the trial judge has heard all the evidence, often from many witness over a lengthy period of time. There is an adverse consequence of erring on the side of finding that there has been no material change in circumstances that affect the child. It is significant because the appeal court will not have the benefit of the trial judge’s findings of fact on the merits of the second aspect of the case. There is accordingly a tendency to quickly pass over the first aspect of the case and to focus on the second aspect.