When a couple goes through a separation or divorce, they may turn to the courts to establish responsibilities such spousal support, child support, and access to children. Orders can come in a number of forms, including interim and final orders. The former is intended to temporarily establish responsibilities while awaiting a court date, while the later is an outcome of a trial. A recent decision from the Ontario Superior Court of Justice looks at how courts treat motions to vary each type of order and serves as a warning that varying a temporary order can be difficult.
Court sets temporary order
The parties involved did not ever live together, but do share a child who was born in October, 2016. The mother and father ended their relationship on December 1, 2018.
The mother and father were not able to agree on access arrangements when they broke up, which resulted in the father bringing an emergency motion on May 15, 2019, in which he sought access to the child. The court responded by ordering that he have parenting time with the child for two hours each Saturday and Tuesday.
A temporary was made in September of that year which included essentially the same terms, with the addition of holiday and summer schedules.
Problems persist following temporary order
Following the order, the father stated that a number of issues have presented problems. The mother, by her own admission, has been repeatedly late to drop off the child, but did extend the end-time of visits when this occurs. The father added that the mother had cancelled access completely on two occasions. There has also been conflict at exchanges, including argument and swearing. The father stated these arguments occur at every exchange. The father also complained that the mother is inconsistent with who picks up and drops off the child, with the mother sometimes performing that role in addition to her mother and her partner.
The mother was also said to have involved the police approximately six times while the father has called the police twice.
As a result of these incidents, the father requested to vary the temporary order in a way that would see his parenting time expanded. He stated that the mother has sabotaged his parenting time, and that a parenting schedule that would see the parents alternating weeks with the child would be more suitable.
The mother’s position was that other than her lateness at drop-offs, there is no basis for changing the order.
Varying interim orders vs final orders
The court stated that while a final order should only be varied if there is a material change of circumstances that is likely to affect, or does affect, the best interests of the child.
However, case law states that there is a significant difference between applying to vary an interim order as opposed to a final order. Generally, interim orders are designed to be in place until a trial. The court referenced a 2018 decision which stated that requests to change them should only be successful if there are “compelling reasons.”
In this case, the court failed to find evidence sufficient to demonstrate a material change in circumstances, and that the father admitted that these problems persisted prior to the interim order being put in place. As a result, nothing had really changed.
Contact Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional.
