January 28, 2014
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How soon is too soon to re-litigate your custody order? Our circumstances change, especially when kids are involved, as their needs, interests and maturity are always changing. However, final custody orders are not meant to change. What happens if you think your order no longer reflects reality?

When a court issues a custody and access order, after all appeal options are exhausted, the order cannot be re-litigated simply because one or both of the parties is not satisfied with the ruling. The reason for this is simple, apart from the basic legal principle of finality (i.e. the same case cannot be continuously reargued in court until a party gets a result he or she likes) finality also provides stability in the family law context; the children of parents who have been through the court process need to know where they will be living and with whom and that this will not be constantly changing.

The only way a custody and access order can be varied by a court of law is if the party bringing the challenge is able to establish something called "a material change in circumstances". Once this is established, a court may then determine whether the proposed change in custody and/or access is in the best interest of children in question.

The term "material change in circumstance" is found in the language of the Children's Law Reform Act, one of two statutes (the other is the Divorce Act) under which a litigant may bring a motion to vary a previous court order in Ontario or, in some cases, a portion of an executed separation agreement that was never even incorporated into an order.

A material change has been interpreted by our courts to mean a significant change in the child's life since the last custody order was made or an agreement for custody was entered into by the parties, and one that was not foreseeable at that time. Therefore, one parent’s notion that a certain custody and access arrangement has simply gone on "long enough" will likely not be sufficient to establish a material change in circumstances. As the Supreme Court of Canada has held, “the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way”.

In short, the test as set out by the Supreme Court of Canada for challenging a custody/access order is:

  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.

If the parent bringing the motion cannot meet this test, then the inquiry should go no further and the motion should be denied. Parents seeking to bring these kinds of court challenges should consult with a family lawyer as court proceedings can be costly – particularly if the court finds that the motion brought was without merit and orders the losing parent to pay costs towards the other parent's legal fees.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law