Issues around child custody and access can be some of the most difficult to address when going through a divorce or separation. It’s not uncommon for the parties of a separation to come to an agreement about child custody, only to have their feelings about such agreements change down the road. What can be done about that? This was a question recently addressed in a decision from the Ontario Superior Court of Justice.  

The Facts

The parents had a child in 2014, though they were not in a committed relationship. Unfortunately, the father found himself incarcerated for the first six months of the child’s life. The court did not go into much detail about the incarceration, but said it was related to “dishonesty.”

It was not until March 23, 2015 that the first order around parenting was made. The child was seven months old at this time. The father was granted parenting time five times per week in two hour blocks. After four months, an additional order was made, this one granting the father custody on alternate weekends, from Saturday evening to Sunday morning. By the time the child was about to turn two, those weekend visits were changed to take place from Friday evening to Sunday mornings, as well as to include a midweek visit until the child was old enough to begin attending school.

The application brought by the father was an attempt to have the weekend visits occur on a weekly basis rather than every other week.

The law

Changes to custody and access orders are governed by Section 29 of the Children’s Law Reform Act, which states,

“A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.”

The court then looked at what can be considered a material change in circumstances. The father’s position is that the child reaching the age to being attending school counted as a material change in circumstances, but the mother said it did not, adding that the child was doing well under the schedule already in place.  

The Supreme Court of Canada addressed the question of what qualifies as a material change in circumstances in a 1996 decision where it wrote,

What suffices to establish a material change in the circumstances of the child?  Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.).  The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.).  Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.  “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”:  J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

The court’s decision

The court commended the father’s efforts to spend more time with the child, but did not arrive at the conclusion that it amounted to a material change in circumstances. This is because the child’s parenting needs had not changed. The child getting older in age is not enough in and of itself to count as a material change in circumstances.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

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