An Ontario court recently considered the interesting question of what constitutes a material change in circumstances when determining a party’s request to vary parenting time.

 

The Parties’ Story

The parties had a child in 2014, but they never cohabited or had a relationship (they had several casual encounters only). The father was not present for the first six months of the child’s life because he was incarcerated.

In July 2016, after he was out of jail, the father was awarded parenting time on alternating weekends from Friday evening to Sunday evening, as well as mid-week access until the child started school in September 2018.

The father brought a motion to vary his parenting time.

The mother argued that there was no material change in circumstances and that the child was doing well under the current parenting schedule.

 

Section 29 of the Children’s Law Reform Act 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 [emphasis added] that affects or is likely to affect the best interests of the child.

Similarly, the 1996 Supreme Court case, Gordon v. Goertz, outlines that the material change in circumstances must have occurred after the last order for access was made. The court explained that a change alone was not enough; rather, the change must have altered the child’s needs or the ability of the parents to meet the child’s needs in a “fundamental way”. In other words, the question is: would the previous order have been different if the circumstances existing now had been in place earlier? For it to be “material”, the change should also represent a distinct departure from what the court could reasonably have anticipated in making the previous order.

In another case, Wiegers v. Gray, the court found that a “mere passage of time and increased maturity of the child” did not, in and of itself, constitute a material change of circumstances. If it did, there would be an automatic right to seek variation of custody orders on a regular basis every few years, which would be problematic.

 

The Court’s Decision

In dismissing the father’s motion to change, the court considered evidence from a number of parties, including the father. Among other things, the father argued that the child was older now than he was when the 2016 order was made, and that that constituted a material change in circumstances.

Although the court commended the father for wanting more time with the child, it concluded that the evidence at trial did not demonstrate that there had been any change since the last order that had altered the child’s needs or the ability of the parties to meet those needs in a fundamental way. That is, there was no evidence that the child’s needs were not being met. The only change that had occurred was the fact that the child was two years older than he was when the last order was made. The court stated:

…simply the passage of time and increased maturity of a child does not, by itself, constitute a material change in circumstances. If it did, parties could bring motions to change every few years which is “contrary to established law”.

The court noted that while it was unfortunate that the father had lost his mid-week parenting time when the child started school, this was to be expected and it was clearly contemplated in the earlier order.

 

Lessons Learned

Before varying a custody order, the court must be satisfied that there is: (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.

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