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In a recent decision of the Ontario Court of Justice (Mohammad v. Mahmood), the Court was asked to consider whether it was appropriate to change an order for joint custody to an order for sole custody in favour of the father.

Background Facts

In 2012, Mr. Mohammad and Ms. Mahmood settled the issue of custody of their two children, agreeing to an order of joint custody.

In 2014, Mr. Mohammad was granted a temporary order permitting that he move with the children from Ontario to Saskatchewan as he had obtained employment there.  The children have lived with their father in Saskatchewan since December 2014, visiting with their mother in Ontario during school breaks.  The mother initially objected to the move, but then agreed that it was best to avoid trauma and confusion to the children, and allowed them to stay in Saskatchewan.

The father then brought a motion in 2016 to ask the Court to vary the custody order from joint to sole.  He argued that he had been the primary caregiver of the children and had been looking after all their emotional and financial needs.  He also argued that the mother rarely spent her time or resources with the children due to her health problems and the need to care for her ailing father.  The mother disputed the father’s arguments, and asked the Court to maintain the joint custody arrangement.

When Might a Court Change a Settled Custody Order?

A court can change an order if either party demonstrates a material change in circumstances.  A material change is a change that, if known at the time of the initial order, would have resulted in different terms.  The change must be “substantial, unforeseen and of a continuing nature”.

Was there a “Material Change in Circumstances” in this Case?

The Court found that there had been a material change in circumstances in this case that touched the welfare of the children and the ability of a parent to meet the children’s needs.

There were in fact two material changes since the initial order in this case:

  1. The father had found new employment in another province and moved with the children with the blessing of the court; and
  1. The mother’s health had deteriorated since the date of the last order, affecting her mobility, ability, and employment.

Should the Custody Order Be Changed in this Case?

Just because a court can make a change to the initial order (having found one or more material changes in circumstances), it doesn’t mean that it will.  In this case, the Court decided that the order of joint custody was still the right arrangement in the best interests of the children.  This was true even though the parents live in different provinces.

The Court explained that the joint custody regime should remain in place because:

  • both the mother and father have something to offer the children together;
  • both balance each other’s parenting philosophy and style; and
  • they can communicate effectively with each other and schools and doctors by electronic means, even though they live in different provinces.

Distance is not an obstacle if the parents have the willingness to communicate for the sake and welfare of their children.

If you are wondering whether you might be able to change a custody order, give some thought to whether there has been a material change in circumstances in your case, and remember that any arrangement must ultimately be in the best interests of the children.

For more information on the issue of joint custody, have a look at our recent blog on the topic.  And, for information about any family law matter, call Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.

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