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Facts[]

The mother appealed from the variation of a consent order with relation to access, arguing that the modification did not take into consideration the child's (a 3 year old) routine with regard to daycare, naps, etc.

Issue[]

  1. Is a child getting older a change in circumstances under s. 17(5) of the Divorce Act?

Decision[]

Appeal allowed.

Reasons[]

Justice Helper, writing for the court, held the motions judge was entitled to take notice that the needs of a 3 year old with regard to his father are different than that of an 18-month old. She is quoted:

The needs of a child in relation to each of his parents change frequently over the years from infancy to adulthood. No court order can be crafted to address those ever-changing needs and the concerns of separated parents as they relate to their child; thus, the need for variation.

The court thus modified the access provisions to work around the child's schedule, finding that to be in the child's best interests.

Ratio[]

A change in age is a change in circumstances under s. 17(5).

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