Gordon v. Goertz — Material Change in Circumstances
- •Gordon v. Goertz, [1996] 2 SCR 27, is the controlling Supreme Court of Canada decision on varying parenting orders. Without proof of a material change in circumstances, the court will not even consider varying an existing order.
- •A 'material change' must be (1) significant, (2) not contemplated by the original order, and (3) actually have happened — not might happen.
- •Self-rep variation motions fail at the threshold most often because the affidavit fails to clearly identify (a) the existing order, (b) what specifically has changed, and (c) when the change occurred relative to the order.
The case
In Gordon v. Goertz the Supreme Court of Canada considered a mother's application to relocate with her child from Saskatoon to Australia after her husband's medical residency took him there. The case became the foundational decision on when a court will vary an existing parenting order.
The test from Gordon v. Goertz has two stages: first, the applicant must establish a material change in circumstances since the last order. Only if a material change is established does the court then assess what arrangement is in the best interests of the child going forward.
The three-part material change test
- There must be a change in the condition, means, needs, or circumstances of the child and/or the ability of the parents to meet those needs.
- The change must materially affect the child — it must be sufficiently significant.
- The change must not have been contemplated by the court at the time of the original order.
What qualifies as a material change
| Qualifies | Does NOT qualify (without more) |
|---|---|
| Parent relocating geographically | Parent moving across town |
| Major change in either parent's income or employment | Mild fluctuation in income |
| Child reaching an age that changes their needs (e.g. starting school) | Child getting older without other changes |
| New evidence of abuse, neglect, or family violence | Old grievances re-litigated |
| Parent's new spouse / partner who affects child welfare | Parent dating someone the other dislikes |
| Child expressing developmentally-appropriate views about parenting | Child preferring one parent for one weekend |
| Existing schedule has stopped working in practice (documented) | Disagreement about whether schedule works |
| Substance abuse, mental health crisis newly emerging | Long-standing personality differences |
How to document a material change in your affidavit
- Open by identifying the existing order: court, date, judge, and a short summary of what it currently requires.
- Set out what has changed since that order, with specific dates anchoring each change.
- Provide direct evidence of the change (exhibits — texts, school records, medical records, employer letters).
- Tie the change to a material impact on the child specifically — schooling, health, time with each parent, sibling relationships, cultural/linguistic heritage.
- Only then propose the variation you're seeking, with specific terms the court can adopt.
Frequently asked
What if the original order was wrong from the start?
Gordon v. Goertz does not let you re-litigate the original order through a variation motion. If you believe the original order was wrongly decided, the remedy is an appeal — and most appeals must be filed within 30 days of the order. Variation requires something to have changed AFTER the order, not a do-over of the original.
Does Gordon v. Goertz apply under provincial family law statutes?
Yes. While Gordon v. Goertz was decided under the federal Divorce Act, provincial family law statutes (BC's Family Law Act s.47, Alberta's Family Law Act s.32, etc.) all adopt the same material change framework. The threshold test is functionally identical across Canada.
How material is 'material'?
The Supreme Court has repeatedly emphasized that 'material' means significant enough that the original order would likely have been different had it known about this change. A change that just makes things slightly inconvenient is not material. A change that affects the child's schooling, health, primary residence, or relationship with either parent typically is.