Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Family law – Custody – Judgments and orders – Terms – Parents of two children sharing custody with conditions intermittently imposed by court order – Mother’s passport subject to court ordered conditions for a period of one year with either party “at liberty to apply for a further change in conditions” – Does the court have jurisdiction under ss. 16(6) and 17(3) of Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) to make an order exempting future custody variation applications from demonstrating that a material change of circumstances had occurred since making of earlier order? – Whether “liberty to apply” that does not require change of circumstances to be shown, conflicts with s. 17(5) Divorce Act and jurisprudence – Whether there is a review mechanism for custody orders made under ss. 16 or 17 of Divorce Act – Whether Court of Appeal erred in finding that “liberty to apply” in a custody order does not require changed circumstances be shown.

The parents separated in 2005, shortly after the birth of their twins. They divorced in 2011. There have been several court applications and appeals over issues concerning a workable shared parenting regime between them. Several years ago, the mother was diagnosed with bipolar disorder and her condition is controlled with medication. From time to time, she has been non-compliant with her medical treatment regime, causing her to experience manic episodes, and resulting in some periods of hospitalization. The conditions of the parenting regime have been changed from time to time, depending on the mother’s health and stability. Toward the end of 2014, the mother’s mental health deteriorated, which the court considered to be a material change in circumstances. The court imposed, inter alia, a formal monitoring order, requiring her to take her daily medication and imposing conditions on her passports. The father’s appeal was based on the wording of the passport order and whether the mother had to demonstrate a material change in circumstances since the making of the previous order, in order to lift the passport restrictions.