The court dealt with two motions in this case. The first was brought by the Respondent father, seeking a temporary order to change the final order in place regarding parenting time. The final order in place at the time these motions were heard required the party’s child to reside primarily with the Applicant Mother. The Respondent father is seeking that the party’s child reside with him on a primary and full-time basis, with the Applicant mother having supervised parenting time. The second motion was brought by the Applicant mother in which she seeks the dismissal of the Respondent father’s motion and an order to update the section 112 OCL report.
- Should primary care and control over the party’s child revert to the Respondent father on a temporary basis?
- If so, what sort of parenting time should the Applicant mother have?
The court reviewed the case law regarding requests to change a custody, access or a parenting order, and referenced the two-stage process they must undergo outlined in Gordon v Goertz:
- A determination as to whether there is a material change since the last order was made, and
- If so, a fresh inquiry into the best interests of the child.
The court noted this process varies when determining whether to make a temporary order for variation of a final parenting order. The court must not only undergo the two stages outlined above, but they must also:
- Assess whether the changed circumstances have created a situation of actual or potential harm, danger or prejudice for the child, or such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests;
- Be satisfied that the child’s best interests require an immediate change to reduce the detrimental impact of unacceptable negative dynamics or behaviors;
- Be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child and that the proposed temporary variation is urgently needed to shield the child from likely future harm;
- Be satisfied that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
The onus is on the party seeking a temporary variation of a final parenting order to satisfy the court of the above. They must establish that in the circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that any delay in changing the present circumstances would exacerbate actual or potential physical and/or emotional harm to the child.
The court then turned to the facts at hand in this case in which great emphasis was placed on the Applicant’s sexual relationship with a man recently convicted of possession of child pornography. The court found that the mother’s permission of this man to occasionally spend time overnight at her home caused concern for her judgment, and for the party’s child’s safety.
The court was satisfied there has been a material, substantial and continuing change in the circumstances likely to affect the best interests of the party’s child because of the presence of this man in the Applicant’s home. This change arose after the making of the current final order and was not foreseeable nor could it have been reasonably contemplated by the judge who made the order. The change has created a situation of actual or potential harm to the party’s child of such a magnitude that immediate rectification was seen to be required to safeguard the child’s best interests. As such, the court was satisfied that in this instance, the court had jurisdiction to grant a temporary variation of a final parenting order.
The court ordered, on a temporary basis, that final order be temporarily stayed, and that the party’s child shall reside with the Respondent Father and the mother to have unsupervised parenting time with the child one day per week for up to 8 hours. An order was also made for the OCL to provide an updated section 112 report, as requested in the Applicant mother’s motion.