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Supreme Court of British Columbia

D.N.D. v. W.S.C.

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01

Holding and result

The court found the respondent did not establish a material change sufficient to vary sole custody and guardianship, and even if such a change were shown, joint custody/shared parenting would be denied because the respondent's persistent hostile and intimidating conduct toward the mother and her family would increase conflict and harm the child. The proposed extended alternate‑weekend access in Camrose was denied as contrary to the child's interests because of excessive travel and disruption. The court instead ordered limited increases to access: short, supervised enhancements including twice‑weekly Skype contacts of 10 minutes, optional Friday extensions to alternate weekends with seven days' notice, and two week‑long summer visits in 2013, and awarded costs to the claimant at Scale B.

Court disposition

Application dismissed to the extent of seeking joint custody/guardianship and extended Camrose access; limited access increases granted as set out in orders; costs awarded to claimant at Scale B.

Orders

  • Liberty to bring non‑urgent applications in New Westminster or Vancouver if Cranbrook court dates not available within three weeks
  • Respondent to have two Skype/Internet contacts per alternate‑weekend cycle: 10 minutes on the Thursday evening following respondent's personal access and 10 minutes on the next Monday evening at mutually agreeable times (7:00 p.m. suggested); claimant may increase duration in her sole discretion as child tolerates
  • Alternate weekend access may begin Friday at 5:00 p.m. on respondent's alternate weekends if respondent can be in Cranbrook and provides seven days' notice by e‑mail each time (advance notice for multiple dates acceptable)
  • Respondent entitled to two week‑long summer access visits in 2013: one in July and one in August, commencing Saturday at 9:00 a.m. and ending the following Sunday at 4:30 p.m., with at least three weeks between the end of one and the start of the other
  • Claimant awarded costs at Scale B

02

Material facts

Parties

D.N.D.

Claimant Counsel: S.G.L. Label

W.S.C.

Respondent Counsel: A.S.K. Wormeli

03

Procedural history

  1. Posture

    Family Law Variation of Custody/access / Application to Vary Consent Order Heard in Chambers (oral Reasons)

04

Questions and positions

Legal issues

Party arguments

Applicant
Respondent sought to vary the consent order to joint custody and guardianship with a two‑week rotating residence or, alternatively, extended alternate weekend access in Camrose. He relied on changes since the order: child is older and no longer breastfeeding, respondent has more parenting experience, respondent is settled in a veterinary practice, and the child has a half‑sibling. He also argued the consent order anticipated increased access as the child matured and that the court should adjudicate access without requiring a material change finding.
Respondent
Claimant opposed any change, arguing there has been no material change since the consent order and, in any event, changes proposed are not in the child's best interests given respondent's history of hostile, harassing and intimidating conduct, videotaping and aggressive gestures, intrusive demands for medical information, and the undue travel burden and disruption to the child.

05

Court’s reasoning

  1. 01

    Gordon v. Goertz, [1996] 2 S.C.R. 27

    A material change in the circumstances of the child is required before varying a final custody order to prevent an indirect appeal of the original decision

  2. 02

    Family law principle (Family Relations Act/Divorce Act jurisprudence)

    The best interests of the child are the paramount consideration in custody and access determinations

  3. 03

    This judgment (D.N.D. v. W.S.C., 2013 BCSC 336)

    Where a prior order expressly contemplates increased access as a child matures, the court can adjudicate proposed increases in access without requiring proof of a new material change

06

Ratio, limits and disposition

Ratio decidendi

The court found the respondent did not establish a material change sufficient to vary sole custody and guardianship, and even if such a change were shown, joint custody/shared parenting would be denied because the respondent's persistent hostile and intimidating conduct toward the mother and her family would increase conflict and harm the child. The proposed extended alternate‑weekend access in Camrose was denied as contrary to the child's interests because of excessive travel and disruption. The court instead ordered limited increases to access: short, supervised enhancements including twice‑weekly Skype contacts of 10 minutes, optional Friday extensions to alternate weekends with seven days' notice, and two week‑long summer visits in 2013, and awarded costs to the claimant at Scale B.

Obiter and limits

  • The birth of a half‑sibling is generally not a material change as to a child who does not reside with the sibling, though it could be in other contexts
  • Shared parenting regimes typically accompany shared custody and guardianship orders
  • Apologies do not erase the pragmatic and psychological consequences of ongoing hostile parental conduct

Court disposition

Application dismissed to the extent of seeking joint custody/guardianship and extended Camrose access; limited access increases granted as set out in orders; costs awarded to claimant at Scale B.

  • Liberty to bring non‑urgent applications in New Westminster or Vancouver if Cranbrook court dates not available within three weeks
  • Respondent to have two Skype/Internet contacts per alternate‑weekend cycle: 10 minutes on the Thursday evening following respondent's personal access and 10 minutes on the next Monday evening at mutually agreeable times (7:00 p.m. suggested); claimant may increase duration in her sole discretion as child tolerates
  • Alternate weekend access may begin Friday at 5:00 p.m. on respondent's alternate weekends if respondent can be in Cranbrook and provides seven days' notice by e‑mail each time (advance notice for multiple dates acceptable)
  • Respondent entitled to two week‑long summer access visits in 2013: one in July and one in August, commencing Saturday at 9:00 a.m. and ending the following Sunday at 4:30 p.m., with at least three weeks between the end of one and the start of the other
  • Claimant awarded costs at Scale B

Source and reliance status

Supreme Court of British Columbia · 25 January 2013

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Gordon v. Goertz, [1996] 2 S.C.R. 27

Case cited

Rasaiah v. Rose, 2004 BCCA 250

Case cited

Divorce Act

Legislation

Legislation referenced in the available case record.

Family Relations Act

Legislation

Legislation referenced in the available case record.

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