What is the test for a non-custodial parent seeking to vary the custody of their child?
Ontario, Canada
The following excerpt is from L.L.B. v. D.A., 2002 CanLII 2769 (ON SC):
Where there is an existing custody order and the non-custodial parent seeks an order varying it, the controlling decision in Gordon v. Goertz (supra) establishes that he or she must first meet a three part threshold of satisfying the court that (1) there has been a material change in the condition, means, needs of the child or in the ability of the parents to meet the needs of the child, (2) which materially affects the child and (3) which was either not foreseen or could not reasonably have been contemplated by the judge who made the initial order. If the threshold is met, the court on the application must embark on a fresh inquiry into what is in the best interest of the child in the light of all the relevant circumstances surrounding the needs of the child and the ability of each of the parties to meet them.
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