Changing A Custody or Access Order or Agreement

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:

• Passage of Time: this is not a material change of circumstances in and of itself. However if the order or agreement was made to address the needs of a very young child, a material change will occur as the child ages and their needs change. Older children are emotionally stronger and can tolerate longer periods away from each parent. School commitments and extra-curricular activities create scheduling issues that also may need to be addressed.
• One parent is not abiding by the agreement: Where one party repeatedly breaches an order or agreement by impeding access to the child by the other parent, this may constitute a material change. See Zinck v. Fraser where the Mother acted contrary to the spirit of the joint custody arrangement by thwarting access by the Father. Day-to-day care and control of the child was transferred to the Father who better understood the important role played by both parents in the child's upbringing. While repeated violations of a court order or agreement may constitute a material change, more minor or trivial breaches may not. The key factor, as always, is how the violations impact upon the welfare of the child. If a child is being deprived access to a parent this would be contrary to their welfare.
• Animosity between parents: increased hostility between parents may constitute a material change in circumstances where it makes a joint custody order no longer viable. Joint custody orders require cooperation which may not be possible after a breakdown in communication between parents. See the case of Hildinger v. Carroll where the Father put his own need for control ahead of the needs of the child. The parent's lack of shared values and/or respect for one another caused the court to grant sole custody to the mother to whom the child had a closer bond. In high-conflict cases, the court will be concerned with limiting the child's traumatic exposure to parental conflict by reducing the need for the parents to interact with one-another. This may be achieved by granting one parent sole custody or reducing the number of exchanges. The courts generally favour the more reasonable parent in granting sole custody or deciding primary residence.  
• Poor Judgment/Conduct: there are many scenarios where a parent's conduct may pose a risk of emotional or physical harm to the child and constitute a material change in circumstances. Examples include out-of-control drinking, drug abuse, or criminal conduct. The extent to which the negative behaviour is being addressed by counseling or treatment is an important factor to consider. Other circumstances outside the control of a parent may include an abusive new partner who is violent towards the child or exposes the child to domestic violence. Exposing the child to these dangers may constitute a material change in circumstances resulting in a change in custody or access. 
• Improper Parenting/Neglect/Abuse: a failure to attend to educational, health care, or dental needs of the child may constitute a material change in circumstances. Obvious deficiencies in these areas may reveal a poor level of attention, care and supervision. Areas of concern in younger children may include diaper rash, a failure to immunize, lack of potty-training, dirty clothing, and signs of injuries. In older children, signs may include a failure to treat behavioural issues like ADHD, poor academic performance, or poor personal hygiene. Teachers can be a source independent evidence and should be consulted if and when concerns arise. A child with special needs creates additional challenges for a custodial parent. A material change in circumstances will arise if the child's special needs are not being addressed in an effective manner by a parent.
• Wishes of the child: where the court is satisfied that a child has expressed a clear and unequivocal preference for a change in residence, this will be considered a material change in circumstance subject to the age and maturity of the child. It is also important that the opinion was arrived at independently and without outside influence. There are several options available to obtain the views of the child through an independent 3rd party, including a views of the child report, OCL Report, appointment of counsel for the child, or interview by a judge. Involving a child directly in the litigation by way of sworn testimony is generally discouraged, as it tends to expose the child to parental conflict. Finally, the views of the child are not necessarily determinative of what is in their best interest.
• Self-improvement by the non-custodial (access) parents: Sometimes a parent may have suffered from a mental illness, addiction issue, or an irregular work schedule which made it difficult to exercise significant custody or access at the time of the original order or agreement. If their personal circumstances improve, the court may treat that as a material change in circumstance by awarding increased access or custody to that parent. However, if a child is thriving in the custody of another parent or caregiver, the court may be reluctant to change the status quo in favour of an untried option in spite of a parent's self-improvement efforts. Efforts should be made to put one's best foot forward before an agreement or order is made.

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.