Motions to Change: Custody and Access, Part 2

What have judges said about Motions to Change custody and access?


In our previous post, we reviewed what you must prove on a Motion to Change a custody or access Order.  In this post, we review some cases where judges considered requests to change custody or access. 

Hsiung v. Tsioutsioulas, 2011 ONCJ 517

This case involved a claim of parental alienation. The respondent father brought a motion seeking a variation of the custody order that was in place at the time, which gave sole custody to the mother and access to the father three consecutive nights each week.

The court found that, while the child was in the hospital in critical condition, the mother had done everything in her power to exclude the father from medical appointments, isolate him from access to medical staff, and deprive him of access to medical information. In determining an appropriate order, the court stressed to the parents that they were both equally important in their child’s life, regardless of the acrimony and conflict that existed between the two of them, and ordered a joint custody arrangement, and cautioned the mother that if she continued to alienate the father from the child’s life, the next step would be to grant sole custody to the father.

Harris v. Crawford, 2013 ONCJ 388

In this case, the Respondent Father brought a Motion to Change seeking to change the court’s previous access order. In the initial access order, the Respondent was given generous and liberal access, which he was exercising. He desired expanded access, and argued that a material change in circumstances had taken place as he had retired from the military.

No material change was found due to the fact that, at the time of the initial order, the Respondent made it known that he was planning on retiring, so the initial Judge had the benefit of that information when he made the first Order. Given that the Respondent’s retirement plans were known at the time the initial Order was made, no material change had taken place.

Hackett v. Sever, 2017 ONCJ 193

This case involved two Motions to Change, one from the father seeking a change in access, and one from the mother asking that the parties’ joint custody arrangement be varied to sole custody to her. Both parties were successful in part, with the mother successfully obtaining sole custody, and the father successfully varying the access schedule.

The father argued that a material change of circumstances occurred when the mother chose to unilaterally ignore the custody/access order which provided for “reasonable access on reasonable notice” and impose a far more restrictive access regime with mandatory supervised visits for a significantly shorter time period. The court found that the change was material, and adjusted the access schedule to one that served the children’s best interests.

The mother, on the other hand, successfully argued that the increase in conflict between the two parents, including times where the father would threaten to call the Children’s Aid Society, constituted a change in circumstances material enough to warrant awarding sole custody to the mother.