I saw a Court of Appeals case yesterday where the Court overturned a Queen’s Bench decision that changed parenting from a primary parenting arrangement to a joint parenting arrangement. The court’s reason was that the Queen’s Bench judge didn’t have the ability to make major changes to an interim parenting arrangement in morning Chambers. You can read the whole case here if you want.
That isn’t the first Court of Appeals case overturning a Queen’s Bench chambers decision I’ve seen lately either. So, what does it mean for parents hoping to change custody before a trial?
Before getting into the details of making changes, we need to make sure everyone is using the same terminology. Our court system can be confusing, because certain words mean certain things legally, that they don’t mean in everyday use.
For example, custody. Under the Divorce Act custody refers to decision making authority, not the amount of time a child spends with a parent.
Another example is access. Access means the time a child spends with each parent.
To make it even more confusing, the Family Law Act doesn’t use custody or access. Instead, it uses guardianship and parenting time.
Who makes decisions for my child? = Custody = Guardianship
How much time does my child spend with each parent? = Access = Parenting Time
So, if what you are seeking is a change from your child living every other weekend with you to living with you one half of the time, you are really seeking to change access not change custody.
How do I change access?
If you and the other parent have a good relationship, you may be able to agree to make a parenting change. If you cannot agree, mediation or collaborative family law might help you make a parenting change.
The final option is court. Family court typically is a long, involved process that requires multiple court appearances. What most people don’t typically realize is that there are different types of court appearances, and judges have different powers at each type of appearance.
The most common appearance is Family Law Chambers (also called morning chambers). All applications to Family Court begin in Chambers, and a Justice in Chambers does not have the same power that a Justice presiding over a Trial, or a Special Chambers or even a Judicial Dispute Resolution does.
Judge vs. Justice
Court of Queen’s Bench = Justice
Provincial Court = Judge
Those different powers are what the Court of Appeal referenced in the case above when they struck down the Court of Queen’s Bench decision changing parenting from primary to shared. The Court of Appeal said that because the Justice made the decision in morning Chambers, he did not have adequate information to make a major change to parenting. Instead, the change should have waited until a Special Chambers date could be arranged.
This case suggests that Justices in Chambers should not be making a major change to parenting, and that a parent seeking a major change needs to be prepared to go to a Special Chambers date, or even a trial before the change will be made.
What does this mean for me?
If you are a parent seeking to change your parenting arrangement, you face an uphill battle. Even if you have the facts and evidence to support your position, this decision means a Justice may not be able to make the change in morning Chambers. You may have to book a special chambers application in order to make the change, which means it will take longer.
If you are a parent opposed to a change in the parenting arrangement, this case is a reason why a Justice should not make the change in Chambers.
Quick Click Law can help you if you are in a parenting application. Please book a family law consultation for advice.
Please note that none of the information contained in this post is legal advice. You should seek legal advice before taking any actions in family court.