The majority of parenting plans or custody orders are entered into by way of agreement or on consent. During a divorce or separation, emotions are high. Pressure from the other side's lawyer, financial stress, and exhaustion may all contribute to a parent accepting a less-than-ideal parenting plan perhaps hoping that it can be changed at a later date. However, it is only where the original order or agreement is no longer working for the child that the court will step in to make changes. The courts will be reluctant to interfere with a child's routine for a plan that has not been tested. If you are going through a separation, it is important to put your best foot forward at the outset to ensure that the child will maintain a close relationship with you.
Keeping in mind that changing a custody or access order/agreement is not easy, they are not set in stone. Where the court finds that an agreement is no longer working for the child, it has an obligation to vary the agreement to meet the child's needs. This article briefly discusses the procedure for changing an access or custody arrangement and the legal grounds upon which these cases are decided.
Forms 15, 15A, and 35.1 under the Family Law Rules Forms are required to bring a motion to change a custody or access order. To change an arrangement under a written agreement, you must bring an application using Form 8.
In order to make a change to a custody or access arrangement, you must satisfy three conditions. First, there must be a change in the condition, means, needs or circumstances of the child and/or the the ability of parents to meet the needs of the child. Secondly, this change must materially affect the child. Third, this change must not have been foreseen or reasonably contemplated by the original agreement or order. (Gordon v. Goetz, 1996 2 S.C.R. 27 at para. 13)
Without overcoming these threshold issues a court will have no jurisdiction to vary an order or agreement. However, there are a wide variety of circumstances that would amount to a material change in circumstances. If there is a finding that a material change has occurred, the court will go on to determine what order should replace the current one, based upon the best interests of the child as set out in s. 24 of the Children's Law Reform Act.
The following are examples of material changes in circumstances that can lead to a variation of a custody/access order:
To conclude, there are a wide number of circumstances that may have been unforeseen at the time an order/agreement was made which will allow a court to vary the agreement. If a material change occurs the court may replace the agreement with what it deems to be in the child's best interest, following the factors outlined in s. 24 of the Children's Law Reform Act. However, if the agreement or order is working well for the child, it may be reluctant to change the current arrangement for a plan that is untested.