A recent Ontario case shows that a child getting older does not in itself constitute a “material change in circumstances” that will allow for the variation of a custody order.

What Happened?

The mother and father had never cohabitated or had a relationship. They had several casual encounters that resulted in the birth of their son in 2014. The father was not present for the first six months of the son’s life because he was incarcerated for a crime relating to dishonesty.

In 2016, a court awarded the father parenting time on alternating weekends from Friday at 6:00 pm to Sunday at 6:00 pm plus a mid-week visit of unspecified duration requiring the father to return the son by 6 pm. The midweek visit was to continue until the son began school.

In 2018, the father brought a motion seeking to change his parenting time.

The mother opposed the change. She submitted that there had been no material change in circumstances and that the son was doing well under the existing parenting schedule. Both parties lived relatively close to each other and the son had just started junior kindergarten at a school very close to the mother’s house.

Issues

At issue was whether there had been a material change in circumstances that had altered the son’s needs or the ability of his parents to meet those needs in a fundamental way. And if there had been a material change in circumstances, what parenting schedule was in the best interests of the son?

Legal Principles for Varying Custody Orders

Section 29 of the Children’s Law Reform Act applies to varying orders and 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 that affects or is likely to affect the best interests of the child.”

The first question to be asked on a motion to change is whether there has been a material change in circumstances of the child subsequent to the last order. Such a finding of a material change in circumstances is required for the court to have jurisdiction to vary a custody and access order. If the applicant can demonstrate a material change in circumstances, the court must then consider the merits and make an order that is in the best interests of the child.

According to case law, for there to be a finding of a material change in circumstances “change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way.” In addition, to vary a custody order, the judge must be satisfied of:

(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.

The Decision

Applying these above principles to the case at bar, the court did not find that the evidence showed any change since the last order which had altered the son’s needs or the ability of his parents to meet those needs in a fundamental way.

The court stated there was no evidence that the son’s needs were not being met and the only change that had occurred was the fact that the son was now two years older than he was when the last order was made. The court explained:

“[The son] is now four years old.  As noted […]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 whenolder children want to have input regarding the time that they spend with the parent, this can result in a material change in circumstances; however, this was not the case here.

The court stated that it was unfortunate that the son starting school had resulted in the loss of the father’s daytime midweek parenting time; however, that was to be expected and it was clearly contemplated in the 2016 court order. The court also noted that the mother had offered the father an earlier Friday pick up so that he would have additional parenting time and that he had been able to take advantage of this in a limited way.

Given the court’s finding that there had been no material change in circumstances, the motion to change was dismissed.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.