As the best interests of the child is a fluid concept and constantly changing, it is not surprising that custody orders occasionally need to be modified to address these changes. It is important to keep in mind, however, that the fact that a child is growing and maturing does not on its face constitute a material change in circumstances warranting a variation. The court will not consider altering an order simply because the child’s needs have changed due to their older age. This article will address both the process for seeking a variation as well as the legal standard that will need to be met.
An interim order is a temporary or short-term custody order that generally dictates that the status quo should be maintained until a final order is reached by a negotiated settlement with the absence of lawyers or a final order made by the court. Because these orders are short-term in nature, courts are very reluctant to vary interim custody orders. Interim orders are all about preserving the status quo until trial, and generally are not disturbed. Judges have expressed that unless there is compelling evidence showing the need for change, such as the child being in a dangerous environment, no change in the order should be made. Rather, the parties should abide by the order and use the pending trial as a platform to seek a new custody arrangement.
Although rare, a judge may grant a motion to vary an interim order where there is a substantial change in circumstances that have affected the best interests of the child. Most often this change in circumstances must directly relate to the welfare of the child, and there must be compelling evidence showing the need for immediate action.
The Divorce Act gives courts the authority to vary, rescind, or suspend all or part of a final custody order. After making an application to change your custody order, the judge will check to see if the appropriate legal standards have been met. First, your application must show that a material change in circumstances exists. A material change is defined as:
- 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;
- the change materially affects the child; and
- the change was either not foreseen or could not have been reasonably contemplated by the judge who made the order that is sought to be varied.
If you wish to have your custody order varied, at the very minimum you must establish the above material change in circumstances. This is true even if you and your former spouse both wish to have the order varied – you must still prove the material change before the judge will entertain your application.
One situation, which nearly always constitutes a material change in circumstances, is where there is ongoing and escalating conflict. For instance, if a custodial parent repeatedly interferes with the other parent’s access privileges, or is saying negative things about the other parent to the child. Parental alienation will also almost always establish a material change in circumstances.
Once you establish this threshold requirement, the judge will start over, so to speak, with regard to your custody arrangement. Rather than starting with the previous order and altering it, the judge will start anew and reassess the parenting arrangements in light of the circumstances. As with all custody orders, the standard that will guide the court’s decision is the best interests of the child.
Even if you are successful in being granted a variation of an existing custody order, the change may not happen overnight. A court may structure the order in a way that allows for gradual transition. Removing the child from one home and placing her in another immediately can often cause problems for the child; a gradual transition can be smoother for the child and result in less emotional turmoil.
Sometimes the court may decide to issue an interim variation order rather than issue a new final order. This type of order allows the court to temporarily alter or suspend all or part of an existing order. The legal standard required before this type of order is issued, is that the applicant must first show the material change of circumstances, and second show that the best interests of the child are served by making an interim order. This action is taken very rarely, as a temporary change can be unsettling to the child.
Although the same standards of material change in circumstance and best interests of the child apply to varying access orders as well as final orders, it is often easier to have an access order varied. With regard to access, changes that would not be material from a custodial standpoint may in fact be material with regard to access. For instance, when a child starts attending school full time the access order may need to be altered to conform to the child’s new schedule.
If a parent seeks to minimize or lessen his or her access to the child, they must show a compelling reason why the normal amount of access is appropriate. Alternatively, if a parent seeks to terminate access, it should only be granted as a last resort. Termination should only occur where the access provides the child with no benefit. This is only appropriate in extreme situations, often where violence, neglect, or severe parental alienation has occurred.