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Digest of the Week — "Material Change in Circumstance"

2012 CarswellNB 730 |

C. (M.D.) v. C. (T.) |

New Brunswick Court of Queen’s Bench

Family law | Custody and access | Variation of custody order | Factors to be considered | Material change in circumstances

Mother and father had two children and then separated — Parents were awarded shared custody which was later varied to sole custody to father and access for mother — Father adopted beliefs and precepts from group called "Freemen of the Land" and when stopped by police for driving with suspended license refused to recognize their authority or identify himself — Father had further interaction with police for driving — Mother brought motion to vary custody order — Motion granted in part; mother's access increased — Material change in circumstances was shown by father's change in beliefs regarding authority of government as those beliefs could impact children — Father was entitled to freedom of thought, beliefs, opinion and expression under s. 2(b) of Canadian Charter of Rights and Freedoms but situation constituted material change in circumstances of children and father's ability to meet their needs — Father failed to pay tickets which resulted in him losing his license and his employment — Loss of license also resulted in father unnecessarily exposing his children to two public confrontations with police — Belief system was beyond law and could affect children if transmitted to children over years — Change constituted material change in circumstances as contemplated by Divorce Act — Father regained his driver's license and acknowledged his beliefs could impact children — There was no evidence father's beliefs seeped into any other parts of his life and he maintained he did not subscribe to all of group's beliefs — Both parents were capable of caring for children — Parents' inability to communicate rendered joint custody impossible.

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