Update from the Court: When will a Child’s Wishes be Sufficient to Alter a Parenting Order?

December 18, 2024

Introduction to Parenting Orders

After separation, determining a new parenting arrangement is one of the most important and challenging decisions. Parties may struggle to come up with a long-term parenting arrangement, especially when the children are young. If the parties are able to agree, they can ask the Court to issue a consent parenting Order governing the new parenting arrangement. This can be final or interim depending on where parents are in the litigation process.

When an out-of-Court agreement cannot be reached, one party may bring an application to Chambers in the Saskatchewan Court of King’s Bench, seeking the Court’s assistance. The Court will then put in place an interim Order specifying what the parenting arrangement shall be as the litigation progresses toward a trial. After trial, a final order of the Court determining the parenting arrangement will be made.

 

How Long Does a Parenting Order Last?

Once an Order is put in place by the Court, it does not expire unless the Court prescribes a date for it to be reviewed. An interim Order governs the parenting arrangement until it is altered by: agreement between the parties, replaced by a new interim Order, or extinguished by a final judgment at trial.

 

How to Change a Parenting Order

A party who feels that an Order is no longer suitable for their situation may bring a new application to the Saskatchewan Court of King’s Bench and ask the Court to change it.[1] To do so, that party must prove that there has been a “material change in circumstances”, justifying replacing the first Order with a new Order.

The “material change in circumstances” test is as follows:

  1. There must be a change in the circumstances of the child which is a distinct departure from what could have reasonably been anticipated by the Court when the original Order was made;
  2. The change must affect the child’s best interests to a level that requires change to the original Order.

If the test is met, the Court will then determine what changes should be made to the original Order, and put in place a new Order that is in the child’s best interests.

 

Mryglod v Tarling

There are numerous cases where courts have examined whether the test for a material change in circumstances has been met. In Mryglod v Tarling, 2023 SKCA 26, the Saskatchewan Court of Appeal addressed the test in a specific circumstance – when can a change in a child’s preference justify altering an existing parenting Order?

 

Facts of the Case

In 2011, the mother and father of a four-year-old child entered into a parenting Order by consent where parenting was shared on a rotating weekly basis. In 2021, the father brought an application to Saskatchewan’s Court of Queen’s Bench (as it was then called), to alter this Order.

The father sought to have the child’s primary residence with him, and time with the mother changed to every second weekend. He argued that the child was now 10 years older and had expressed a preference for the arrangement to be altered. He also noted that both parents had re-partnered and moved to different places.

The Chambers Judge denied the father’s application on the basis that the “material change in circumstances” test had not been met. The Judge reasoned that the passage of time and the child’s wishes were not determinative and cautioned against a slippery slope of teenagers being able to alter previously established parenting Orders.

 

The Analysis by the Court of Appeal

The father appealed the decision to Saskatchewan’s Court of Appeal on the basis that the Chambers judge had erred in concluding that there had not been a material change. The Court of Appeal agreed with the father.

The Court of Appeal noted that to meet the “material change in circumstances” test, the change cannot be slight. It must be a change that is significant to the child’s fundamental circumstances that could not have been contemplated when the original Order was made. While the passage of time and a child’s increased maturity on their own are not enough to constitute a material change automatically, the nature of changes that occur over time can still fundamentally alter a child’s circumstances, justifying a change to a parenting Order.

The Court of Appeal held that a child’s increased maturity can give rise to a material change where the child has expressed a wish to change a parenting arrangement. The Court of Appeal provided an overview of a variety of cases from across Canada where Courts have held that the passage of time, along with a child’s expressed wishes, has been sufficient to justify alteration of a parenting Order.

The Court of Appeal provided a list of factors which inform when a child’s wishes will support a material change and potentially changing a parenting Order:

  1. The current age and maturity of the child;
  2. The age of the child when the existing Order was made;
  3. Whether the child’s expressed preference has remained consistent;
  4. Whether the child has appropriate responsibilities and rules at the preferred parent’s residence; and,
  5. Whether the child was coerced.

In this case, the Court of Appeal held the change was not solely the passage of time and the child’s expressed wishes. There was also broader evidence to be considered in determining whether a material change had occurred. Both parents had re-partnered, and so the child had to interact with new parental figures. The child’s parents both moved into new homes, and the commute from the mother’s home to the child’s school had increased, impacting the child’s social life. The child also had tension in her relationship with her mother and with her mother’s partner. The child was experiencing emotional difficulties and viewed her father’s home as more stable. She also had a new half-sibling in her father’s home, with whom she had a positive relationship.

 

The Court of Appeal’s Decision

Ultimately, the Court of Appeal allowed the father’s appeal. Viewing the evidence cumulatively, the Court held that a material change had been established. The Court then proceeded to the second stage of the test and considered whether the change impacted the child’s best interests such that an alteration of the existing week-on week-off parenting Order was justified. Because of procedural issues, this question was remitted back to the Court of King’s Bench to be determined.

 

Conclusion

In summary, to alter an existing parenting Order, the applicant must establish that there has been a “material change in circumstances” that impacts the child’s best interests. This is a complex determination, and the factors considered by the Court will vary in each case. The passage of time on its own will not be enough, but the increased maturity of a child and an expressed wish by the child to alter an existing parenting arrangement can be sufficient in certain cases.

If you have questions about altering an existing parenting Order, please do not hesitate to contact our Family Law Practice Group.

 

About the Author:

Zina L. B. Scott is an associate lawyer in the Regina office and practices primarily family law, child protection, insurance defence, and civil litigation.

Written with assistance from 2024 McKercher LLP summer student, Carter Easton.

 

About McKercher LLP:

For nearly 100 years, McKercher LLP has grown deep roots across Saskatchewan, serving the community from offices in Saskatoon and Regina. Now, as one of the province’s largest and most established full-service law firms, we proudly carry on this legacy – following a client-first philosophy as we provide legal services and real solutions for the people who rely on us.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.


[1] Note, an application to alter an existing parenting Order due to a material change in circumstance is not the same thing as bringing an appeal to the Saskatchewan Court of Appeal. An appeal of an Order (whether interim or final) is a separate process, which occurs when a party believes that an Order was reached based on a legal error. The process for appealing an Interim Order is beyond the scope of this blog post

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