This case shines light on the importance of fully understanding the terms of an interim Order before consenting to same.
The parties have one child together who was 4 years at the time of the court proceedings. The parties never lived together, and the child had lived with the mother since birth. Following the parties’ separation, disputes regarding access arrangements arose. The father eventually brought an emergency motion seeking access, and the court ordered that the father have parenting time with the child twice a week for two hours each.
The parties’ matter then proceeded to a Motion, whereby a temporary Consent Order was made with almost all terms relating to custody and access being consented to by the parties. The court noted that the terms of the Order were detailed and thoughtful and that both parties had the benefit of legal counsel when the terms were negotiated and agreed to.
Since the Order, the father sought to vary same based on the following challenges:
- Lateness: The mother, by her own admission, has repeatedly been late to drop off the child.
- Conflict: There has been some conflict at access exchanges. The father stated in his Affidavit that there have been arguments and swearing in front of the child.
- Pick-Up and Drop-Off: There has been a lack of consistency in terms of who is dropping off the child. Sometimes it is the mother and at other times it is the maternal grandfather or the mother's partner.
- Police: There has been police involvement. The father stated that the mother repeatedly involves the police without any basis.
- Access cancellations: The father says the mother cancels access. When access has not taken place there has been conflict about whether there should be "make up time" and if so when that should be.
Should the interim Consent Order be varied?
The court noted that the law makes clear that there is a significant difference between applying to vary an interim Order versus a final Order. In general, an interim Order is intended to continue until trial and are most commonly varied only in "compelling" or "exceptional" circumstances. The court further noted that interim Orders are 'meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial,' and as such, requests to change them should be rare.
In applying the law to the case, the court found that there was insufficient evidence to establish that there has been a material change of circumstances since the making of the interim Consent Order. In doing same, the court noted that the father had indicated that issues of lateness, conflict, and police involvement already existed prior to the Order being made. The court further noted that even if there was a material change in circumstances, it would not justify changing the interim Consent Order given that 1) the circumstances are neither compelling or exceptional, 2) changes to the access schedule would be a substantial departure from the status quo that the child has always known, and 3) that the mother was not responsible for all of the conflict cited by the father.
This case reminds us of the importance of consenting to an interim Order. The threshold to justify changing the terms of the Order is high and will not be met without a compelling or exceptional circumstance. Parties should exercise great prudence when consenting to an Order in the first place and seek advice from their legal counsel regarding any issues that may arise in the future.
For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.