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Child’s Best Interests Trumps Divorce Judgment

This was a successful appeal by the mother from an Order varying the father’s access. The Divorce Judgment granted the parties equal parenting time to their two children, but the father was unable to have access due to his job which required shift work. After the father had changed jobs, he sought mother’s agreement to equal access on an alternating week basis and obtained a court order to that effect at the Court of Queen’s Bench, when the mother refused. One child had special needs which required consistent environment.

The Court of Appeal held that the father’s change in employment and reduction in access constituted a material change in circumstances, and that the Chambers Judge failed to consider the children’s best interests in reference to material change.

What this means practically, is that the best interests of a child can trump the previously negotiated terms of a divorce judgment.

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