Recent Case: Changing a final parenting order

Luke's Place

This case involved a father who wanted to change a final order about parenting that had been made over 7 years earlier. In order to change a final order, the father brought a motion to change and had to prove that there had been a “material change in circumstances” since the making of the final order. When it comes to changing a parenting order, this requirement can be found at s. 17(5) of the Divorce Act and s. 29(1) of the Children’s Law Reform Act. It is only after finding a material change in circumstances that a court is to consider what parenting arrangement is in the best interests of the child.

In this case, the father claimed there had been a material change in circumstances because he now has the flexibility to work from home and the final order is over 7 years old and no longer reflects what is best for a now 10-year-old child. Because of these changes, the father wanted to immediately increase his parenting time with the child during the summer and eventually during the school year.

The mother was open to expanding the father’s parenting time under the existing schedule but was against any kind of drastic increase in time given the anticipated disruptive effect it would have on the child. The mother pointed to times when the father had not fully utilized his existing parenting time and his tendency to ask for last-minute accommodations and changes.

In deciding whether the father had met the requirement of showing a material change in circumstances, the court summarized the legal principles that must be applied:

  • “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
  • The question is whether the previous order might have been different had the circumstances now existing prevailed earlier
  • The change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order
  • Before doing any kind of new analysis on the best interests of the child, the court must be satisfied that there has been:
    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
  • A change in circumstances is “material” if it is significant and long-lasting

In applying these principles to the facts of this case, the court determined that the father did not prove a material change in circumstances. He provided insufficient details about his flexibility to work from home and how this amounted to a material change in circumstances. The mere fact that the final order was made over 7 years ago when the child was younger does not automatically mean there has been a material change in circumstances.