As the court in a recent case stated, the pre-Labour-Day “Let’s Change Johnny’s School” urgent motion has become somewhat of an unwanted annual tradition. In this instance, the father brought a motion to change both the country where the children were going to live and where the children were going to go to school.
The Parties’ Final Order
The parties were married in 2003 and separated in May 2013. They had three children together, ages 15, 13 and 10.
In June 2013, the parties obtained a final, comprehensive parenting order incorporating terms that they had agreed to in mediation. The order provided that the parties would share joint custody of the children, that the mother would have primary residence, and that the mother would be permitted to relocate the children’s primary residence from Hamilton, Ontario to St. Louis, Missouri.
The following month, the mother and children relocated permanently to St. Louis.
In July 2020, the father brought a motion to change the parenting arrangements and child support. Approximately one week later, the father brought an urgent motion to stay the June 2013 order. The father requested that the children reside with him in Hamilton and that he be permitted to register them for school in Ontario. Among other things, the father alleged that the he had COVID-related concerns about the mother and the city/country where she lived.
Changing a Custody and/or Access Order
A recent Ontario case set out an extensive analysis of the relevant factors that must be considered when a parent seeks to change a custody and/or access order. As the court summarized:
- The starting point is that the original order is presumed to be appropriate and in the best interests of the child.
- In a variation proceeding, the threshold test is whether there has been a material change in circumstances since the previous order was made.
- If there is no material change in circumstances, the inquiry goes no further.
- If a material change in circumstances has been established, the court will embark upon a determination of the child’s best interests. This must be a broad and careful inquiry which takes into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs.
- Even if there has been a change in circumstances, the court must still decide whether it is appropriate to change the existing order, and if so, in what manner.
- The court should have all relevant information before it makes any changes. As a result, courts are very reluctant to impose temporary changes with respect to final orders. In most circumstances the existing order should continue until the court has confidence that all necessary information has been assembled and considered. The safest course is to fully ascertain the immediate and longer-term impact of any change on the child – before implementing the change. A poorly considered or misguided change may actually prejudice the child. And further correction or reversal of a premature variation could only compound the harm to the child.
- In extreme or urgent circumstances, the court may have no alternative but to consider a temporary variation to provide some immediate protection or benefit for the child which cannot or should not be delayed.
- But the onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child. And they must clearly establish that the immediate benefit to the child is significant and necessary, and outweighs any foreseeable negative consequences or prejudice resulting from disruption of the child’s situation, relationships or routine.
- Given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied — on a balance of probabilities — that a clear and compelling need to make an immediate change has been established.
Furthermore, with respect to the COVID-19 pandemic, courts have found that parents have a responsibility to keep children safe and to work together in a creative, respectful and cooperative manner. Parents are also expected to maintain as much stability, continuity and parental involvement as possible.
Consideration of the Children’s Best Interests
In dismissing the father’s motion, the court concluded that the father’s materials did not set out that the dramatic changes he was asking for would be in the children’s best interests. The court found that the father had simply mentioned a host of issues that he had known about for years (e.g., homeschooling, crowded housing, and so on). While the concerns the father had might have been worthy of consideration, none of them justified sudden, dramatic upheaval in the children’s lives. Furthermore, although the father claimed that he had a new concern (the pandemic), the mother denied his allegations. There was also no evidence that the mother had ever been reckless in any aspect of her life.
Finally, the father indicated that the custody arrangement should be changed because the children wanted to remain in Ontario with him. While the court acknowledged that it had to consider the children’s views and preferences, it found that this was a complicated topic that could not be rushed. The court went further, chastising the father for bringing the motion at all:
The default position for almost all children is that they love both parents; they don’t want to hurt either parent; they wish their parents could get along; and they wish the adults in their lives would make the decisions.
By all indications, that’s exactly how [the children] feel. And that’s how they have been allowed to feel for these past seven years.
But the father’s precipitous actions have changed everything.
When a parent defies a court order and brings an emergency motion “because that’s what the children want”, the parent drags the children into the guilt-ridden role of co-conspirator.
The father tells the world: “The children want me to do this.” But his unspoken message to the children: “You’d better back me up on this.”
In the end, the court concluded that there had been no material change in circumstances or urgent situation that required correction by way of a temporary order. The court found that the father had not identified any problems that could not be addressed through cooperative and therapeutic options.
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