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My divorce agreement states the parenting time is shared 50/50. The days are stated as Wednesday to Wednesday. My ex is demanding I switch Fridays. This is interfering with my work schedule, as I can get called to go to work anytime on my set of working days. Can she legally make this demand?
016 months ago
Helen Banks - Banks Family Law (Calgary) Verified Lawyer
Hi Garrett, no she cannot legally make this demand. She could bring an application to vary the parenting schedule if there has been a material change in circumstances e.g. if Wednesday to Wednesday does not work with her work schedule or is not in the children's best interests for some reason but your evidence that a Friday switch would not work with your own work schedule would likely be sufficient for the court to refuse her application.
116 months ago
Dawn Nelson - Dawn L. Nelson, Barrister & Solicitor (Edmonton) Verified Lawyer
Hi Garrett,
I would recommend that you contact a lawyer to discuss the specifics of your situation in a confidential setting. There is nothing legal or illegal about making a request to change something in a parenting plan; the governing principle is always what is in the best interests of the child(ren).
The Alberta Government has recently upgraded the services available to families to resolve their disputes out of court whenever possible. There are a number of resources for family mediation that may be of assistance in your situation. Take a look at this tool for further information: https://www.alberta.ca/family-resolution-hub
But as in all things in life, you get what you pay for. Lawyers attend professional development training , study case law and the latest research on parenting and child development, and keep up to date on tax changes that affect their clients to name just a few.
In Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27 at paras 10-13, the Supreme Court stated as follows:
Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child”. Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther…
The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued. . . .
What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way...The question is whether the previous order might have been different had the circumstances now existing prevailed earlier...Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”
It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
016 months ago
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