In order to change an existing custody or access arrangement, you must apply to the court to “vary” (change) the previous order. To succeed with a variation application, you must be able to prove to the court that there has been a change in the “condition, means needs or other circumstances of the child” (Divorce Act, s. 16(8)).
While the Divorce Act permits an order to be varied, the threshold for establishing a material change, as set out in the case law, is a difficult one to meet. The particularly high threshold helps to ensure that parties may rely on orders made by the court, and to prevent the overburdening of the judicial system with immaterial claims. However, parents may have pressing and legitimate reasons for wanting to change existing orders. For example, a parent may need to relocate to another region for the purposes of work or education, or the type of custody agreed upon might no longer be a viable solution for the parties involved.
Canadian Case Law on Changing Custody or Access
In Gordon v. Goertz, the Supreme Court of Canada stated that for the court to find that the material change threshold is met, the judge must be satisfied that there has been:
- A change in the condition, means, needs, or circumstances of the child or in the ability of the parents to meet the needs of the child,
- Which materially affects the child, and
- Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
This third part of the test, that the change was not foreseen or in the reasonable contemplation of the judge who made the initial order, is the most difficult aspect of the test to meet. For example, a parent who wants to move to be with a new partner may try to argue that the relationship constitutes a material change, but the court may find that, if that relationship was in existence (even in a very preliminary stage) at the time of the original order, it does not represent a change.
For information on how to apply to vary a court order, see the Child Support Forms section.
A Skilled Ontario Custody Lawyer Can Guide You
The variation process is both time consuming and complex and may require legal expertise. An experienced Ontario family law lawyer can be a valuable resource if you are contemplating a variation to an existing order or agreement. At Feldstein Family Law Group P.C., we can deliver a range of legal services tailored to your needs and budget. From complete representation to drafting or consulting services, we can help you approach a variation in custody or access.
Contact our firm at (905) 581-7222 to arrange a free consultation and review of your case.