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Family Court litigation dealing with custody and access issues are generally the most emotionally and financially exhausting types of cases imaginable. It can take years and tens of thousands of dollars. It can involve assessments and expert evidence. At the end of the day, you will end up with a decision-making regime and parenting calendar that you can only hope are in the children’s best interests. Whether Court appointed or entered on consent, you may still have some trepidation about the appropriateness of the terms moving forward. The reality is that only time will tell how the children will be impacted by the parenting provisions, particularly in high conflict cases where the parents do not communicate well.
What happens if some time passes after the Final Order is made and you or your former spouse conclude that the children are not adjusting well, or that you are not happy with the custody regime or access schedule and you want to seek a change?
The Children’s Law Reform Act is quite clear in the prohibition placed on the court in making variation orders dealing with custody and access. The only exception to this prohibition is the demonstration of a material change in circumstances that affects or is likely to affect the best interests of the child. It is important to note that the change in circumstances is measured from the date of the order sought to be varied was made to present, as otherwise, parties would be invited to essentially re-litigate their already resolved case. This can be a delicate issue where there is a history of CAS involvement or domestic violence issues as parties may very soon after the Final Order is made look to change it based on the other party’s behaviour. The jurisprudence is quite clear that the standard of proof in ruling on this issue is the balance of probabilities. It is equally clear that the onus to satisfy the court lies on the person seeking the variation, so if this is something you are planning, you better have substantial and persuasive evidence. If the material change threshold is not met, then the court is foreclosed from making any variation order. If it is met, they will move on to assess the best interests, which – as some of our other blogs have shown – is an equally complicated issue.
The process is an unpredictable one and ultimately the Court has to engage in a very fact specific assessment.
If it is something you are considering, I recommend you speak to a lawyer about your situation and get independent legal advice before commencing a Motion to Change of this nature. If you would like to schedule a consultation, please call 905-415-1636.
For the Feldstein Family Law Group, I’m Nick Slinko.