McGrath v. Thomsen

McGrath v. Thomsen

The variation was justified because evidence established a material deterioration in circumstances (mother's ongoing substance abuse, abusive and undermining conduct and adverse effect on the child) since the prior order; the trial judge was entitled to prefer the respondent's evidence and to entrust the custodial...

Source-derived case information.

Citation
2000 BCCA 640
Parties
Plaintiff/appellant: Tina Marie McGrath; Defendant/respondent: D'Arcy Andrew Thomsen
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
20 November 2000
Procedural Posture
Family Law Custody and Access (divorce Act S.17) / Appeal Decision (court of Appeal for British Columbia; Oral Reasons)
Outcome
Appeal dismissed
Legal Topics
Variation of Custody Order, Access/supervised Access, Best Interests of the Child, Change in Circumstances, Divorce Act S.17
Source Language
english
Family Law Child Custody Appeals Variation of Custody Order Access/supervised Access Best Interests of the Child Change in Circumstances Divorce Act S.17

Source-derived case record

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Parties

Tina Marie McGrath

Plaintiff/appellant

D'Arcy Andrew Thomsen

Defendant/respondent

Procedural Posture

Family Law Custody and Access (divorce Act S.17) / Appeal Decision (court of Appeal for British Columbia; Oral Reasons)

Legal Issues

  1. 1 Whether the trial judge varied the custody/access order without the requisite change in circumstances under s.17 of the Divorce Act
  2. 2 Whether the variation was supported by evidence arising since the prior access order
  3. 3 Whether the impugned order effectively terminated access contrary to the child's best interests

Ratio Decidendi

The variation was justified because evidence established a material deterioration in circumstances (mother's ongoing substance abuse, abusive and undermining conduct and adverse effect on the child) since the prior order; the trial judge was entitled to prefer the respondent's evidence and to entrust the custodial parent with discretion over ongoing access given the child's best interests; the appeal is therefore dismissed.

Court Disposition

Appeal dismissed

Orders

  • Order of Mr. Justice Fraser dated April 20, 2000 limiting appellant's access to her son to the sole discretion of the custodial parent (respondent) affirmed
  • Appellant may apply in future to vary the order if she establishes changed circumstances and that variation would be in the child's best interests