In the recently decided case of Newton v. Luettger, 2011 BCSC 995, the court made an observation which, while simple, is also far reaching in its effects. The case involved a 2005 trial custody order which provided that the parties would share roughly equal time with their two children. The parties concurred at the hearing that the equal division of care never occurred and that the mother regularly had the children in her care for greater than 60% of the time. The mother sought a variation of the trial custody order, relying on the difference between the order and the actual care circumstances as a material change in circumstances.
Mr. Justice R.D. Wilson stated found that,
 The argument advanced by the Claimant is based on the proposition that the failure to comply with the terms of an order is equivalent to “a change in the condition, means, needs or other circumstances of the child of the marriage…”. To me, that is a novel proposition. No authority was cited in support of it. Absent binding authority, it is not a proposition which commends itself to me.
 Non-compliance with the provisions of an order is not the equivalent of a change in circumstances. The Claimant’s application for a variation order is dismissed because she has failed to establish that there has been a change in the condition, means, needs or other circumstances of the children, or either of them.
Interestingly, neither party seems to have explored the prospect that, while the non-compliance did not in and of itself constitute a change in the children’s circumstances, the care actually received by the children since the pronouncement of the trial decision and their related needs would, in fact, have given rise to a difference. It remains a question as to how far a determination such as Mr. Justice Wilson’s can reach. It is common for parties to seek a variation based on the failure by the other to live up to the terms of an order, and it seems logical that the law should both direct the actions of the parties and also accurately reflect those actions when they change.