Wendy Kirk

Former spouses brought competing motions to vary custody, access, and support provisions of a prior divorce order.

The moving party sought joint custody, expanded parenting time, elimination of child support, and rescission of arrears, while the responding party sought restrictions on access and an order declaring the moving party a vexatious litigant.

Applying s. 17 of the Divorce Act and the test from Gordon v. Goertz, the court found no material change in circumstances justifying modification of custody or shared residence.

The court accepted that the child’s diagnosis of autism spectrum disorder constituted a material change warranting adjustments to access arrangements.

The court recalculated child support under the Federal Child Support Guidelines, fixed arrears, ordered significant costs enforceable as child support, suspended enforcement of arrears to avoid loss of the payor’s employment, and declared the moving party subject to a leave requirement for further proceedings under s. 140 of the Courts of Justice Act.

The applicant father sought joint custody and a name change for the parties' six-year-old daughter.

The respondent mother sought sole custody.

The parties were never married and separated before the child's birth.

The court found a history of poor communication, high conflict, and instability on the part of the father.

Applying the best interests of the child test and the principles regarding joint custody, the court concluded that joint custody was inappropriate.

The mother was awarded sole custody, the father was granted specified access, and the request for a name change was denied.