IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. H. applies to vary the terms of a final order made by this court, by consent, on August 31, 2012, as they pertain to parenting time with, and parental responsibilities for, his son.  

[2]           Mr. Bartlett and Mr. Soloway asked me to rule on a question of law as the first item of business on the application, before hearing any evidence.  Ordinarily, I would decline such a request, on the premise that legal principles should not normally be decided in the absence of a factual matrix established by evidence or agreement.  In this case, I acceded to the request because the hearing may be significantly abbreviated if the question is decided in Mr. H’s favour.  I am conscious that litigants in this court are often people of modest means, and that the court should do what it can to minimize the cost of the proceedings.

[3]           The question arises from section 215(1) of the Family Law Act SBC 2012, c 25, which provides:

[4]           Before addressing the question, I pause to observe that the phrase employed in section 215(1) is “… a change in circumstances …”, while the phrase considered in the leading authorities is “… a material change in circumstances …”: Gordon vs Goertz 1996 CanLII 191 (SCC), [1996] 2 SCR 27 at paragraph 12.  However, it has been held that the change in language has not effected a change in the nature of the condition precedent to jurisdiction - the applicant continues to carry the onus of establishing a material change in circumstances: J.V.G. vs E.T. 2014 BCPC 307 at paragraph 16.

[5]           Mr. Bartlett points out, and Mr. Soloway concedes, that:

[6]           Mr. Bartlett says that there is no principled reason to draw a distinction between agreements between parents, on the one hand, and consent orders, on the other, in relation to the question now under consideration.  Each is reached by the same process, a negotiation between the parents.  If the agreement is filed in the Registry, as was done in C.R.H., each is equally enforceable, by the same court process, and in the same way.  In neither case does the court hear evidence or perform any adjudication on the merits.  Mr. Bartlett says that it should logically follow that the rationale for dispensing with the need to demonstrate a material change in circumstances should apply equally to each.  So, he says, if the condition precedent set out in section 215(1) does not apply to agreements between parents, it should not apply to consent orders.  The point made by Mr. Bartlett was raised, but not decided, by Justice Slade in J.(J.S.) vs J.(R.J.) 2008 BCSC 399 at paragraph 42. I was referred to no case in which it has been expressly decided. 

[7]           If the question on this application were free from authority, I would be persuaded by the inherent logic of Mr. Bartlett’s submission.  However, there are a number of cases, binding upon me, in which it has been held that a material change in circumstances is a condition precedent to jurisdiction to vary a consent order in relation to parenting time or responsibilities.  See, for example, J.W.M. vs J.L.M. 2012 BCCA 324 at paragraph 36, and Jellis vs Jellis 2014 BCSC 375 at paragraphs 23 - 26. Jellis is particularly notable because it was decided under the Family Law Act, which replaced the Family Relations Act in 2012.  

[8]           It is true that the line of argument advanced by Mr. Bartlett is not mentioned in those judgments, and it is likely that it was not advanced when those cases were argued.  However, I do not think it open to me to decline to follow a binding authority on the premise that it would have been decided differently if it had been argued differently.