BACKGROUND
The Applicant and Respondent are the parents of an eight-year-old child. A Final Order dated April 3, 2024, provided for equal parenting time and joint decision-making responsibility.
The Applicant subsequently brought a motion to change seeking primary care, sole decision-making responsibility, modified parenting time for the Respondent, and a period of supervised parenting time. The Respondent sought a return to the equal parenting arrangement.
The Applicant argued that there had been a material change in circumstances since the Final Order, including the Respondent’s significant cocaine addiction, relapses, multiple Children’s Aid Society (“CAS”) investigations, instability, communication difficulties, and concerns regarding his parenting capacity.
ANALYSIS AND THE LAW
Material Change in Circumstances
Sections 17(5) and (6) of the Divorce Act require the court to find a change in the circumstances of the child before varying a parenting order. Relying on Willick v. Willick, 1994 CanLII 28 (SCC), and Gordon v. Goertz, 1996 CanLII 191 (SCC), the court confirmed that the change must be material and relate to the circumstances of the child or the parents’ ability to meet the child’s needs.
The court found that the threshold had been met. Since the 2024 Final Order, there had been significant developments, including the Respondent’s cocaine addiction and relapses, multiple CAS investigations, and a temporary order imposing extensive recovery-related conditions.
Best Interests of the Child
Once a material change is established, the court must conduct a fresh, child-focused assessment of the child’s best interests. Section 16 of the Divorce Act requires primary consideration of the child’s physical, emotional and psychological safety, security and well-being.
The child had ADHD, anxiety and an Individual Education Plan, with evidence identifying a heightened need for stability and predictable caregiving. The court found that these circumstances made stability particularly important.
Addiction and Parenting Capacity
The court confirmed that addiction, standing alone, is not determinative of a parent’s ability to care for a child. The relevant question is the impact of the addiction and related circumstances on the child.
However, the Respondent had not provided objective evidence demonstrating sustained recovery or compliance with the recovery regime. He had not produced treatment or recovery plans, safety plans, testing records, or other independent evidence establishing sustained sobriety. The court emphasized that parenting decisions cannot be made on assurances alone.
Parenting Capacity and School Attendance
The court also considered the Respondent’s ability to meet the child’s day-to-day needs. Approximately 35% of the school days falling within the Respondent’s responsibility following the interim order were missed, in addition to concerns regarding lateness and missed activities. The court found consistent school attendance and routine particularly important given the child’s educational and emotional vulnerabilities.
The evidence also demonstrated that the child had been exposed to significant adult conflict and had developed concerns about his father’s wellbeing. The court found a pattern of parentification that was inconsistent with the child’s emotional needs and developmental stage.
Decision-Making Responsibility and Parenting Time
The court concluded that joint decision-making was no longer workable due to the parties’ level of conflict and the Respondent’s communication difficulties. The Applicant was therefore granted sole decision-making responsibility, subject to consulting the Respondent regarding significant decisions affecting the child.
The court also determined that increasing the Respondent’s parenting time was not in the child’s best interests. The Respondent had not demonstrated sufficient recovery, stability, or compliance with the existing recovery conditions. His parenting time was therefore ordered to be supervised for six months, after which the arrangement could be reviewed if he demonstrated sustained recovery and stability through objective evidence.
CONCLUSION
The Applicant’s motion was granted in its entirety. The child was ordered to reside primarily with the Applicant, who was granted sole decision-making responsibility. The Respondent’s parenting time was ordered to be supervised for six months, with the possibility of a future review upon demonstrated recovery, emotional stability and compliance with the court-ordered conditions.
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