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'Significant' change necessary to adjust custody orders

Separated or divorced parents who want to change a custody order need to prove there is a significant reason to do so — and one that is in the best interest of the children, says Toronto family lawyer Katherine Robinson.

The party must prove there is a “material change in circumstances,” which provides the court with jurisdiction to address the case, says Robinson, associate with Shulman Law Firm.

“The court is not in the habit of checking in to orders every year,” she tells AdvocateDaily.com. “The instability that would cause is not good for the family or the children, and there are no court resources available for that type of endeavour.”

Once a court order is made, whether it’s court mandated after a trial or parties agreed to a court order, "that is presumed to be correct and those arrangements are presumed to be in the best interest of the children,” Robinson says.

“If you want to move away from that, you need to show what is so significant that those arrangements are no longer in the child’s best interest, and why some other arrangements are. That’s not an easy hurdle to get over.”

A recent Ontario Court of Appeal decision upheld a lower court ruling that there was no material change in circumstances to support a father’s request for a revised court order.

In Easson v. Blase, 2016 ONCA 604 (CanLII) the father argued that the mother’s concession to an adjusted parenting schedule was acknowledgment of a change of circumstances. He also said a change in his employment allowed him more time to be with the children, but the court did not agree.

The father's broad position "risks creating a disincentive to parents to agree to make concessions," which could lead to increased litigation, the decision reads.

Robinson says it’s important to note that parents are free to make their own arrangements outside of a court order.

“The courts recognize anything the parents can agree to — and is something they can agree is in the child’s best interests — is a great alternative to going to court, and that should not be discouraged,” she says.

If the legal system allowed parents to adjust court orders freely, it would lead to excessive court appearances and potentially lengthy court battles, Robinson says.

“It goes back to emotion,” she says. “Just because you’re angry and don’t have a good relationship with your ex-spouse, that doesn’t mean it should affect the children.”

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