One of the most difficult parts of divorce or separation for parents can be determining issues around child custody and access. Occasionally, parties may settle these issues upon their divorce but change their minds about what is appropriate years down the road. Such was the case in a decision recently issued by the Ontario Superior Court of Justice – Family Court.

The Facts

The mother and the father had the child in late 2014 outside of a committed relationship. The father was not present for the first six months of this child’s life because he was incarcerated for a crime the court described as being about “dishonesty.”

The couple’s first order concerning parenting was made on March 23, 2015, when the child was seven months old. At this time the father was granted parenting time five times per week for two hours at a time. Four months later another order was made which set out parenting time on alternating weekends from Saturday at 6:00pm to Sunday at 6:00pm. A third order was made just before the child’s second birthday which extended the alternating weekends, with them beginning on Friday at 6:00pm. There was also a midweek visit of unspecified duration added to this. The midweek visit was to be in place until the child started school.

The father’s application to the court was a request to have the alternating weekend visits moved to occur on a weekly basis.

What the law says

The rules around when and how a change can be made to custody or access orders are set out in Section 29 of the Children’s Law Reform Act, which states,

“A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.”

The leads to the question of what qualifies as a material change in circumstances. In this case, the father argued the child’s increase in age – he had started school – amounted to a material change in circumstances. The mother disagreed and said the child was doing well under the current parenting schedule.

The Supreme Court of Canada established how to determine if there has been a material change in circumstances in a 1996 decision, writing

12.       What suffices to establish a material change in the circumstances of the child?  Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.).  The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.).  Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.  “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”:  J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13.        It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

The court’s analysis

While the court commended the father for wishing to spend more time with his child, it was unable to conclude that there had been any material change in circumstances. The child’s parenting needs had not changed just because he had become older. In determining that a child getting older does not in and of itself qualify as a material change in circumstances, the court references a 2008 decision from the Saskatchewan Court of Appeal, which stated,

“It is my view that mere passage of time and increased maturity of the child does not, in and of itself, constitute a material change of circumstances as required by s. 17(5) of the Divorce Act and the case law that has interpreted that section. Were it otherwise, there would be an automatic right to seek variation of custody orders on a regular basis every few years. This is clearly contrary to the established law. While the reviewing judge may, of course, take into account that a child’s needs may change as he or she matures, it is necessary to go further to determine whether and to what extent those changes have, in the case before the reviewing judge, made the original order inadequate.”

Issues around child access and custody can be complex. With the added emotional stress that can come with these situations, it is important to obtain good, experienced legal advice to help navigate the law around these issues. The team at Borden Family Law has been helping clients in all areas of family law, including separation, divorce, and access, for over 17 years. Please call us at 905-576-6090 or reach us online for a consultation today. Please don’t forget to ask about our flat fees and bundled packages.