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Memorandum

To: John Demeulemeester From: Danielle Knowles Re: Cavanaugh v. Cavanaugh Facts: 1. Donald and Maria Cavanaugh were married for seven years; they are now divorced. The divorce was quite bitter. 2. There are two male children of the marriage. 3. Custody was granted to Maria Cavanaugh; Donald Cavanaugh is seeking to vary the Custody Order. 4. Maria Cavanaugh is now in a new relationship. Donald Cavanaugh claims Maria Cavanaughs new partner is indifferent to the children. 5. Donald Cavanaugh is vocal about his negative feelings for Maria Cavanaugh, even to the children. 6. Donald Cavanaugh feels he is a caring father.

Issues: A. Primary Issues: The initial issue is determining which court has jurisdiction over this proceeding. The main issue for Cavanaugh v. Cavanaugh will be finding what the laws are in regard to varying a Custody Order.

B. Secondary Issues: There are also several pertinent secondary issues that must be taken into consideration. Who, historically, has been the primary caregiver for the children of the marriage? How old are the boys? If they are at an age where it may be considered appropriate, what are their opinions regarding custody? Is it possible that parental alienation has occurred to any serious degree? Do Donald and Maria Cavanaugh share joint guardianship of their boys? How do the children of the marriage feel about Maria Cavanaughs new partner? Last, has Donald Cavanaugh been diligent in paying child maintenance, or has he otherwise consistently provided for his children since his divorce from Maria Cavanaugh? C. Prediction: There are several possible outcomes in this matter. The court may side with the parent who has been the most consistent caregiver of the children. This may mean that the children remain with Maria Cavanaugh or that Donald Cavanaugh be awarded custody. The court may require it be proven that a significant change in circumstances has occurred, warranting variation of the Custody Order. If the children of the marriage are at an age where it would be appropriate to explore such avenues, Custody and Access or Views of the Child Reports may be conducted by a psychologist or a family justice counselor. These reports would take the childrens opinions into consideration when deciding whether or not to vary the Order. Alternatively, joint custody between Maria Cavanaugh and Donald Cavanaugh may be offered in place of one parent having sole custody.

Short Conclusion: It appears that the court will require evidentiary proof that a significant change in circumstances has occurred, allowing for a variation of the Custody Order. The courts may ask that Donald Cavanaugh provide strong reasoning for why he should be granted custody of the children, and why Maria Cavanaugh should cease to have custody. This may extend beyond his having a great dislike for Maria, the statement that her new partner is indifferent to the boys, or because he simply wants custody. If Maria Cavanaugh was the primary caregiver for the children during her marriage to Donald and has continued in that role since her divorce and being granted custody, and nothing points to her being a neglectful, incapable or abusive parent or to her new partner to be a harm to the boys, it is likely that the Custody Order will not be varied. Even though Donald Cavanaugh may be a loving and kind father and provider, that may not be enough for him to successfully vary the Custody Order. If there is nothing wrong with the custody arrangements as they exist, it is possible that they will not be changed. Alternatively, if Maria Cavanaugh has not been a good parent to the children, or it can be proven that her parenting skills have been in decline since her divorce from Donald or the start of her new relationship, it is possible that Donald Cavanaugh may be successful in his venture to vary the existing Custody Order. It is also possible that the opinions of the children may influence the action one way or the other. Custody and Access or Views of the Child Reports may draw out the childrens desire to stay with their mother. If she is a competent parent this may aid in not having the Custody Order changed.

On the other hand, these same reports may find that the boys wish to live with their father. If that is the case, Donald Cavanaugh may be successful in seeking to have the Custody Order varied. There are areas of the Cavanaugh v. Cavanaugh action that I would like to know more about. If I had more information on Marias parenting skills and new partner, who has historically been the primary caregiver, and whether or not the Cavanaughs have joint guardianship of the boys, it is possible that the predicted outcome could be different. However, the law may point towards denying the Application to Vary an Order.

Analysis and Law: Jurisdiction With regard to the issue of which court will handle this proceeding, the Supreme Court, subject to the Divorce Act, has jurisdiction in all matters concerning custody, access, guardianship of children and dissolution of marriage. (Family Relations Act, R.S.B.C. 1996, pt. 1 s. 5) Who May Exercise Custody According to the Family Relations Act, persons who may exercise custody are the childs mother and father either together or separately. If the parents are separated, the parent with whom the child normally resides may also exercise custody. Furthermore, if custody rights exist under a court order, the person who has custody according to the order may also exercise it. (Family Relations Act, R.S.B.C.1996, pt. 2, s. 34).

Best Interests of the Child When considering varying a Custody Order, the court must consider the childs needs and circumstances. These include his or her physical and emotional health, views and opinions, love and affection between him or her and other people, education, and the capacity of the people who have or are seeking custody. The best interests of the child are paramount. (Family Relations Act, R.S.B.C. 1996, pt. 2 s. 24 (1)). Change in Circumstances According to the Family Relations Act, R.S.B.C. 1996, there must be a material change in the childrens circumstances in order to consider varying custody. One of the leading cases in Canada is Gordon v. Goertz, [1996] 2 S.C.R. 27. While Gordon v. Goertz looks at varying a Custody Order in respect to mobility, it does apply to Cavanaugh v. Cavanaugh. In Gordon v. Goertz, the natural mother had custody of the child of the marriage. She sought to move to Australia due to her education goals. When the natural father applied to vary the Custody Order, he was not awarded custody of the child. Although the mother was moving out of the country with the child, it was in the best interest of the child to stay with her. Gordon v. Goertz was appealed by the natural father; however, it was upheld on appeal. I think it is likely that Gordon v. Goertz, [1996] 2 S.C.R. 27 has set the precedent for how Cavanaugh v. Cavanaugh may be handled. It does not appear that Maria Cavanaughs custody of and life with the children has changed enough to allow Donald Cavanaugh to seek to vary the order. Parental Alienation This is also a topic that must be explored when dealing with Cavanaugh v. Cavanaugh. It is common that during and after marriage breakdown and divorce, feelings of bitterness

or hurt may arise between the parties. However, when one or more of the parties involved take it upon themselves to state these feelings in a strong way to the children of the marriage, parental alienation may occur. C.J.G. v. R.C.G. [2007] B.C.J. No. 212 speaks of severe parental alienation, including deliberate efforts to make the children of the marriage turn on their father. In C.J.G. v. R.C.G. there were false claims that the natural father was sexually abusive to the children, that the natural father and his new partner were cruel to the children, and that the natural father was an evil spirited person. The claims were unsubstantiated. While Donald Cavanaugh may not be making such bold statements about Maria Cavanaugh and her new partner, it may still be possible for parental alienation to occur. It has been said that he has a great dislike for his former wife and that he does not attempt to harbor these feelings, even around the children. It has been further claimed by Donald Cavanaugh that Maria Cavanaughs new partner is indifferent to her children. In paragraph 14 of C.J.G. v. R.C.G. [2007] B.C.J. No. 212, the natural mother claims that her former husbands new wife is abusive to the children. While Donald Cavanaugh may not be making such strong claims, they may have a similar effect on the children as they did on those in C.J.G. v. R.C.G. [2007] B.C.J. No. 212. In C.J.G. v. R.C.G. parental alienation at the hands of the mother, amongst other mitigating factors, resulted in custody being awarded to the father. Therefore, if it is discovered that parental alienation has occurred in Cavanaugh v. Cavanaugh it may be possible that Donald Cavanaugh is not successful in his seeking to vary the Custody Order.

Views of the Child If the children of the marriage are of an appropriate age, Custody and Access or Views of the Child reports may be sought to aid in determining who should have custody of them. In C.J.G. v. R.C.G. [2007] B.C.J. No. 212 the opinions of the children were taken into consideration when deciding who should have custody. If the views of the children are considered in Cavanaugh v. Cavanaugh, it could likely result in the children staying with their mother. However, Donald Cavanaugh may have some success in this area if it is found through the reports that his sons desire to live with him or that Maria Cavanaugh having custody is not in their best interest.

Conclusion: In light of Family Relations Act, R.S.B.C. 1996 and Gordon v. Goertz, [1996] 2 S.C.R. 27 I feel it is unlikely that Donald Cavanaugh will be successful in gaining custody of his sons. While he may be a kind and loving father, that may not be enough for the Custody Order to be altered for him to have sole custody. It also does not appear that there has been any material change large enough to take custody of the children away from Maria Cavanaugh and award it to Donald Cavanaugh, nor are there any accusations mentioned about Maria Cavanaugh having an inability to be a good parent. In Ketellapper v. Ketellapper [1999] B.C.J. No. 704 the father sought to gain custody of the children after divorcing their mother, citing that she was struggling financially. However, it was not proven that there were significant changes in circumstances, and the

mother continued to have the childrens best interests at heart. Thus, the Custody Order was not varied to place the children with the father. As I stated previously, if there is nothing wrong with the custody arrangements as they currently exist, it is unlikely that they will be changed. This statement follows the precedents of Gordon v. Goertz, [1996] 2 S.C.R. 27 and Ketellapper v. Ketellapper [1999] B.C.J. No. 704. In my opinion, the statutes and case law that cover custody matters do not point towards Mr. Cavanaugh having success with his Application to Obtain an Order. At best, he may be awarded joint custody if he can show that he is a competent parent and that it is in the best interest of his sons (and possibly their wish) to have more access with their father. However, in reference to my Short Conclusion, there are areas of Cavanaugh v. Cavanaugh I would like to have more information about. If more information is provided on Maria Cavanaughs new partner, who has historically been the primary caregiver to the children, and whether or not the Cavanaughs have joint guardianship, it is possible that the predicted outcome could be different.

List of Authorities: 1. Revised Statutes of British Columbia Volume 5 (Family to Forest) (1996) Read the pertinent sections of the Family Relations Act, R.S.B.C. 1996.

2. Laura Selby, Annotated Family Practice (Continuing Legal Education Society 2006-2007) Supreme Court Rules on page 243 for information on how to vary a custody order. 3. In the Supreme Court Rules I look at Rule 60 Divorce and Family Law on pages 406-430 but it did not contain the information I was looking for. 4. Final Federal-Provincial-Territorial Report on Custody, Access and Child Support: Putting Children First (2002) Read for perspective on custody and access in Canada.

5. Bouck, Dillon, Turriff 2007 British Columbia Annual Practice (Cartwright Group Ltd., 2006) Best Interests Test pages 118-119, 150-154, 159.

6. Gordon v. Goertz, [1996] 2 S.C.R. 27. 7. C.J.G. v. R.C.G. [2007] B.C.J. No. 212. 8. Ketellapper v. Ketellapper [1999] B.C.J. No. 704.

9. Rasaiah v. Rose [2004] B.C.J. No. 893 Was not pertinent to Cavanaugh v. Cavanaugh.

10. Murphy v. Murphy [2002] Y.J. No.13 Was not pertinent to Cavanaugh v. Cavanaugh.

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