Lerners’ Weekly Family Caselaw Review #7
Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law Group presents one of the most interesting cases from the week of November 2, 2020:
When considering what constitutes a “material change in circumstance” sufficient to warrant a motion to change a prior Court Order, one generally thinks of events marked by a definite moment in time – the loss of a job, a change in income, a change in a child’s residence, the diagnosis of an illness, etc. – but the recent decision of Justice Sherr in M.S. v D.F.M.A 2020 ONCJ 497 is an important reminder that in the right circumstances changes resulting from the passage of time may be also sufficient to establish the basis for a motion to change.
In M.S. v D.F.M.A, the father brought a motion to change the parenting time set out in the final Order, dated March 27, 2017, which provided that their daughter have limited parenting time with him (every Sunday and on one additional Saturday each month). At the time the final Order was made, their daughter was 3 years old and did not have a close relationship with the father. The basis for bringing this motion to change was that their daughter was now 7 and her needs had changed. The father took the position that more time with him was in her best interests.
The mother opposed the motion to change on the basis that the father had not met his burden of establishing a material change in circumstances.
Surprisingly, the parties had entered into Minutes of Settlement which provided their daughter would have more parenting time with the father. The mother then resiled from the Minutes, but the parties agreed that the matter would proceed as a motion to change, not as a motion to enforce the Minutes. Enforcement of the Minutes is not explored in this blog post, but it is an interesting topic for another day.
Pursuant to section 29 of the Children’s Law Reform Act, a material change is required in order for a Court to vary a prior Order in respect of custody or access:
A Court shall not make an Order under this Part that varies an Order in respect of custody or access made by a Court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child
The threshold for a material change was established by the Supreme Court of Canada in L.M.L.P. v. L.S.,  SCC 64, which held that “the change must be substantial, continuing, and that ‘if known at the time, would likely have resulted in a different Order.’”
The parent seeking the change bears the burden of establishing that a material change has taken place. If that burden is met, the Court must assess the best interest of the child “having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them” at the time of the motion to change.
In his analysis of whether the father met his burden of establishing a material change, which if met would call for an assessment of the best interests of their 7 year old daughter, Justice Sherr reviewed the case law with respect to aging/passage of time as a material change. His Honour adopted the reasoning of a 1993 Manitoba Court of Appeal decision, Elliot v Loewen, which acknowledged children’s needs change as they age and parenting Orders should change with them.
Justice Sherr acknowledged that parents’ skills and abilities can change over time: “If their ability to meet a child’s needs change, the Court should be prepared to change parenting time Orders if this is in the child’s best interests.”
On the facts of this specific case, Justice Sherr found that there had been material changes in circumstances affecting the child since the original parenting Order was made, and those changes were: the aging of the child from 3 to 7, the father’s increased ability to meet her needs, the father’s consistent exercise of time, and the close relationship he developed with the child. The mother’s refusal to support the relationship and withholding of time were also found to be material changes.
Justice Sherr found that the increased and overnight parenting time sought by the father was in the child’s best interests and Ordered additional time.
It is clear that the aging of a child is not automatically a material change in circumstances. Our Court of Appeal has confirmed this in Brown v. Lloyd, 2015 ONCA 46. But where the aging of a child means that child’s needs or a parent’s ability to care for a child have changed, this case confirms there is some leeway for that to be recognized as a material change in circumstances.
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