Background
The parties experienced a tumultuous relationship from 2008 to 2019 and share three children. A Final Order issued in 2018 established child support and custody arrangements. The Applicant Father seeks to change this order, citing extreme parental alienation by the Respondent Mother in a high-conflict case.
The Applicant filed a Motion to Change in 2020 and now requests interim relief. This case provides a great overview of the legal analysis in trying to change a final parenting order on a temporary basis.
Analysis
Justice Gibson provides a comprehensive overview of the test to change a final order on a temporary basis.
The legal test for varying a final parenting order involves a two-stage inquiry. First, there must be a material change in circumstances since the last order, affecting the child and the parents' ability to meet the child's needs. This change must be substantial, unforeseen, and not reasonably contemplated at the time of the initial order. If no material change exists, the court lacks jurisdiction to vary the order.
If established, the second stage involves a fresh inquiry into the child's best interests, considering both parties' evidence.
When seeking a temporary variation of a final order, a more stringent analysis is required. The court must determine if circumstances justify an immediate change, with an onus on the party seeking variation to demonstrate an untenable situation jeopardizing the child's well-being. The court must be convinced of an urgent need for change before departing from the status quo. Dambrot, J. in S.H. v. D.K. suggests that exceptional circumstances, beyond those in F.K. v. A.K., may justify a temporary variation.
Review of the legal test
[6] In McLeod v. Marsh, 2023 ONSC 1026, Henderson J. addressed the factors to be considered in a similar case at paragraphs 10 - 13:
[10] The issues may be summarized as follows:
1. Can a final order be varied on an interim motion?
2. If so, under what circumstances?
3. Do the facts of this case meet the threshold required and, if so, what order is in the children’s best interests?
[11] Both parties concede that the starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726 (CanLII). Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:
48. To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).
49. The first step: There must be a material change in circumstances since the last order was made.
a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.
b. The change must materially affect the child.
c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S. [2011] SCC 64.
d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.
e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485(Ont. C.A.).
f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.
50. The second step:
a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.
b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.
c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).
d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v Rigillio 2019 ONCA 548 (Ont. CA).
e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.
. . .
52. The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis:
a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.
b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).
c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.
d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).
e. But the evidentiary basis to grant such a temporary variation must be compelling.
f. The court must start with the aforementioned two-part material change in circumstances analysis.
g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.
h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.
i. The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.
j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.
k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.
m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.
….
[13] The applicant cited the decision of Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz J. At paragraph 40, Dambrot, J. concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:
40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.
Conclusion
Judges have the power to change a final parenting order on a temporary basis, but the threshold is very high. The Applicant bears the burden of proof.