Motions to Change: Custody and Access Orders

When can I change my custody or access Order?


In our previous series of posts, we discussed the court procedure for Motions to Change, and the material change in circumstances test for motions to vary child support and spousal support. In this post, we will discuss the same test as it applies to Motions to Change custody/access orders.

What do I need to prove in order to vary custody/access?

As with child and spousal support, in order to obtain an Order varying your current custody or access arrangement, you must prove that there has been a material change in circumstances. The pieces of legislation that governs custody and access are the federal Divorce Act, and the Ontario Children’s Law Reform Act (CLRA). While each piece of legislation contains different wording, courts have affirmed that the test, and factors the court considers, remain the same whether you are married or common-law spouses.

In order to successfully obtain a variation order regarding custody or access, the change that occurred must be material, and must have also affected, or be likely to affect the best interests of the child. The change must also be one that was not foreseen at the time the initial order or variation was made. You cannot use a motion to change custody/access as an avenue to appeal the initial decision.

After a judge finds there has been a material change that warrants revisiting the custody or access Order, they will consider the best interests of the child in light of the new information and make a new Order.  The new Order may be a significant change from the existing one, or the judge may find that the existing Order still meets the needs of the child.

What constitutes a Material Change?

There is no specific list of what may or may not qualify as a material change. The change may be to one or both parents, or the child(ren) themselves.

The Divorce Act does explicitly state that a former spouse’s terminal illness or critical condition shall constitute a material change in circumstances of the child of the marriage, and will be considered while determining the child’s best interests.  The legislation does not list any other specific changes.

One situation that can be a material change is relocating for a new job. In some situations, conflict between parents can be a material change, as can their conduct.

In a future post, we will review some cases where a court considered whether a change was “material” that affected the child(ren)’s best interests.